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Justice Black

dissenting

Rogers v. Bellei

https://www.courtlistener.com/opinion/108307/rogers-v-bellei/

https://www.courtlistener.com/api/rest/v3/clusters/108307/

1970-079

Less than four years ago this Court held that "the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship." Afroyim v. Rusk, 387 U.S. 253, 268 (1967). The holding was clear. Congress could not, until today, consistently with the Fourteenth Amendment enact a *837 law stripping an American of his citizenship which he has never voluntarily renounced or given up. Now this Court, by a vote of five to four through a simple change in its composition, overrules that decision. The Court today holds that Congress can indeed rob a citizen of his citizenship just so long as five members of this Court can satisfy themselves that the congressional action was not "unreasonable, arbitrary," ante, at 831; "misplaced or arbitrary," ante, at 832; or "irrational or arbitrary or unfair," ante, at 833. My first comment is that not one of these "tests" appears in the Constitution. Moreover, it seems a little strange to find such "tests" as these announced in an opinion which condemns the earlier decisions it overrules for their resort to cliches, which it describes as "too handy and too easy, and, like most cliches, can be misleading." Ante, at 835. That description precisely fits those words and clauses which the majority uses, but which the Constitution does not. The Constitution, written for the ages, cannot rise and fall with this Court's passing notions of what is "fair," or "reasonable," or "arbitrary." The Fourteenth Amendment commands: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Speaking of this very language, the Court held in Afroyim that no American can be deprived of his citizenship without his assent. Today, the Court overrules that holding. This precious Fourteenth Amendment American citizenship should not be blown around by every passing political wind that changes the composition of this Court. I dissent. Bellei became an American citizen under the terms of *838 § 1993 of the Revised Statutes, as amended,[1] and he has neither renounced his American citizenship nor voluntarily assented to any governmental act terminating it. He has never given any indication of wanting to expatriate himself but, rather, has consistently maintained that he wants to keep his American citizenship. In my view, the decision in Afroyim, therefore, requires the Court to hold here that Bellei has been unconstitutionally deprived by § 301 (b) of the Immigration and Nationality Act of 1952[2] of his right to be an American citizen. Since § 301 (b) does not take into account in any way whether the citizen intends or desires to relinquish his citizenship, that section is inevitably inconsistent with the constitutional principles declared in Afroyim. The Court today holds that the Citizenship Clause of the Fourteenth Amendment has no application to Bellei. The Court first notes that Afroyim was essentially a case construing the Citizenship Clause of the Fourteenth Amendment. Since the Citizenship Clause declares that: "All persons born or naturalized in the United States . . . are citizens of the United States . . . ," the Court reasons that the protections against involuntary expatriation declared in Afroyim do not protect all American citizens, but only those "born or naturalized in the United States." Afroyim, the argument runs, was naturalized in this country so he was protected by the Citizenship Clause, but Bellei, since he acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, was neither born nor naturalized in the United States and, hence, falls outside the scope of the Fourteenth Amendment guarantees declared in Afroyim. One could hardly call this a generous reading of the *839 great purposes the Fourteenth Amendment was adopted to bring about. While conceding that Bellei is an American citizen, the majority states: "He simply is not a Fourteenth-Amendment-first-sentence citizen." Therefore, the majority reasons, the congressional revocation of his citizenship is not barred by the Constitution. I cannot accept the Court's conclusion that the Fourteenth Amendment protects the citizenship of some Americans and not others. Indeed, the concept of a hierarchy of citizenship, suggested by the majority opinion, was flatly rejected in Schneider v. Rusk, 377 U.S. 163 (1964): "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive." Id., at 165. The Court there held that Congress could not deprive Mrs. Schneider of her citizenship, which she, like Mr. Bellei in the present case, acquired derivatively through her citizen mother. Consequently, the majority in its rush to overrule Afroyim must also, in effect, overrule Schneider as well. Under the view adopted by the majority today, all children born to Americans while abroad would be excluded from the protections of the Citizenship Clause and would instead be relegated to the permanent status of second-class citizenship, subject to revocation at the will of Congress. The Court rejected such narrow, restrictive, and super-technical interpretations of the Citizenship Clause when it held in Afroyim that that Clause "was designed to, and does, protect every citizen of this Nation . . . ." 387 U.S., at 268. Afroyim's broad interpretation of the scope of the Citizenship Clause finds ample support in the language and history of the Fourteenth Amendment. Bellei was not "born . . . in the United States," but he was, constitutionally speaking, "naturalized in the United States." Although those Americans who acquire their citizenship *840 under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled "An Act to establish an uniform Rule of Naturalization," was passed in 1790 at the Second Session of the First Congress. It provided in part: "And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." 1 Stat. 103, 104. This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization. However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U.S. 649 (1898): "The Fourteenth Amendment of the Constitution. . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere *841 fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." 169 U.S., at 702-703. The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization." And in Elk v. Wilkins, 112 U.S. 94 (1884), the Court took the position that the Fourteenth Amendment "contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons *842 not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." 112 U.S., at 101-102. Moreover, this concept of naturalization is the only one permitted by this Court's consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was "to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State." Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause "put beyond doubt and cavil in the original law, who were citizens of the United States." H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as "calculated completely to control the status of citizenship." 387 U.S., at 262. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a "declaration of the classes of individuals to whom citizenship initially attaches." Id., at 292. The majority opinion appears at times to rely on the argument that Bellei, while he concededly might *843 have been a naturalized citizen, was not naturalized "in the United States." This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority's view would exclude from the protection of that Clause all those who acquired American citizenship while abroad. I cannot accept the narrow and extraordinarily technical reading of the Fourteenth Amendment employed by the Court today. If, for example, Congress should decide to vest the authority to naturalize aliens in American embassy officials abroad rather than having the ceremony performed in this country, I have no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment as are those who go through our present naturalization procedures. Rather than the technical reading adopted by the majority, it is my view that the word "in" as it appears in the phrase "in the United States" was surely meant to be understood in two somewhat different senses: one can become a citizen of this country by being born within it or by being naturalized into it. This interpretation is supported by the legislative history of the Citizenship Clause. That clause was added in the Senate rather late in the debates on the Fourteenth Amendment, and as originally introduced its reference was to all those "born in the United States or naturalized by the laws thereof." Cong. Globe, 39th Cong., 1st Sess., 2768. (Emphasis added.) The final version of the Citizenship Clause was undoubtedly intended to have this same scope. See Flack, supra, at 88-89. The majority takes the position that Bellei, although admittedly a citizen of this country, was not entitled to the protections of the Citizenship Clause. I would not depart from the holding in Afroyim that every American *844 citizen has Fourteenth Amendment citizenship. Bellei, as a naturalized American, is entitled to all the rights and privileges of American citizenship, including the right to keep his citizenship until he voluntarily renounces or relinquishes it. The Court today puts aside the Fourteenth Amendment as a standard by which to measure congressional action with respect to citizenship, and substitutes in its place the majority's own vague notions of "fairness." The majority takes a new step with the recurring theme that the test of constitutionality is the Court's own view of what is "fair, reasonable, and right." Despite the concession that Bellei was admittedly an American citizen, and despite the holding in Afroyim that the Fourteenth Amendment has put citizenship, once conferred, beyond the power of Congress to revoke, the majority today upholds the revocation of Bellei's citizenship on the ground that the congressional action was not "irrational or arbitrary or unfair." The majority applies the "shock-the-conscience" test to uphold, rather than strike, a federal statute. It is a dangerous concept of constitutional law that allows the majority to conclude that, because it cannot say the statute is "irrational or arbitrary or unfair," the statute must be constitutional. Of course the Court's construction of the Constitution is not a "strict" one. On the contrary, it proceeds on the premise that a majority of this Court can change the Constitution day by day, month by month, and year by year, according to its shifting notions of what is fair, reasonable, and right. There was little need for the founders to draft a written constitution if this Court can say it is only binding when a majority finds it fair, reasonable, and right to make it so. That is the loosest construction that could be employed. It is true that England has moved along very well in the world without a written constitution. But with complete familiarity *845 with the English experience, our ancestors determined to draft a written constitution which the members of this Court are sworn to obey. While I remain on the Court I shall continue to oppose the power of judges, appointed by changing administrations, to change the Constitution from time to time according to their notions of what is "fair" and "reasonable." I would decide this case not by my views of what is "arbitrary," or what is "fair," but rather by what the Constitution commands. I dissent. MR. JUSTICE BRENNAN, with whom MR.

Less than four years ago this Court held that "the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship" The holding was clear Congress could not, until today, consistently with the Fourteenth Amendment enact a *837 law stripping an American of his citizenship which he has never voluntarily renounced or given up Now this Court, by a vote of five to four through a simple change in its composition, overrules that decision The Court today holds that Congress can indeed rob a citizen of his citizenship just so long as five members of this Court can satisfy themselves that the congressional action was not "unreasonable, arbitrary," ante, at 831; "misplaced or arbitrary," ante, at 832; or "irrational or arbitrary or unfair," ante, at 833 My first comment is that not one of these "tests" appears in the Constitution Moreover, it seems a little strange to find such "tests" as these announced in an opinion which condemns the earlier decisions it overrules for their resort to cliches, which it describes as "too handy and too easy, and, like most cliches, can be misleading" Ante, at 835 That description precisely fits those words and clauses which the majority uses, but which the Constitution does not The Constitution, written for the ages, cannot rise and fall with this Court's passing notions of what is "fair," or "reasonable," or "arbitrary" The Fourteenth Amendment commands: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside" Speaking of this very language, the Court held in Afroyim that no American can be deprived of his citizenship without his assent Today, the Court overrules that holding This precious Fourteenth Amendment American citizenship should not be blown around by every passing political wind that changes the composition of this Court I dissent Bellei became an American citizen under the terms of *838 1993 of the Revised Statutes, as amended,[1] and he has neither renounced his American citizenship nor voluntarily assented to any governmental act terminating it He has never given any indication of wanting to expatriate himself but, rather, has consistently maintained that he wants to keep his American citizenship In my view, the decision in Afroyim, therefore, requires the Court to hold here that Bellei has been unconstitutionally deprived by 301 (b) of the Immigration and Nationality Act of 1952[2] of his right to be an American citizen Since 301 (b) does not take into account in any way whether the citizen intends or desires to relinquish his citizenship, that section is inevitably inconsistent with the constitutional principles declared in Afroyim The Court today holds that the Citizenship Clause of the Fourteenth Amendment has no application to Bellei The Court first notes that Afroyim was essentially a case construing the Citizenship Clause of the Fourteenth Amendment Since the Citizenship Clause declares that: "All persons born or naturalized in the United States are citizens of the United States" the Court reasons that the protections against involuntary expatriation declared in Afroyim do not protect all American citizens, but only those "born or naturalized in the United States" Afroyim, the argument runs, was naturalized in this country so he was protected by the Citizenship Clause, but Bellei, since he acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, was neither born nor naturalized in the United States and, hence, falls outside the scope of the Fourteenth Amendment guarantees declared in Afroyim One could hardly call this a generous reading of the *839 great purposes the Fourteenth Amendment was adopted to bring about While conceding that Bellei is an American citizen, the majority states: "He simply is not a Fourteenth-Amendment-first-sentence citizen" Therefore, the majority reasons, the congressional revocation of his citizenship is not barred by the Constitution I cannot accept the Court's conclusion that the Fourteenth Amendment protects the citizenship of some Americans and not others Indeed, the concept of a hierarchy of citizenship, suggested by the majority opinion, was flatly rejected in : "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive" The Court there held that Congress could not deprive Mrs Schneider of her citizenship, which she, like Mr Bellei in the present case, acquired derivatively through her citizen mother Consequently, the majority in its rush to overrule Afroyim must also, in effect, overrule Schneider as well Under the view adopted by the majority today, all children born to Americans while abroad would be excluded from the protections of the Citizenship Clause and would instead be relegated to the permanent status of second-class citizenship, subject to revocation at the will of Congress The Court rejected such narrow, restrictive, and super-technical interpretations of the Citizenship Clause when it held in Afroyim that that Clause "was designed to, and does, protect every citizen of this Nation " 387 US, at Afroyim's broad interpretation of the scope of the Citizenship Clause finds ample support in the language and history of the Fourteenth Amendment Bellei was not "born in the United States," but he was, constitutionally speaking, "naturalized in the United States" Although those Americans who acquire their citizenship *840 under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art I, 8 Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen The first congressional exercise of this power, entitled "An Act to establish an uniform Rule of Naturalization," was passed in 1790 at the Second Session of the First Congress It provided in part: "And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States" 1 Stat 103, 104 This provision is the earliest form of the statute under which Bellei acquired his citizenship Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v Wong Kim 169 US 649 : "The Fourteenth Amendment of the Constitution contemplates two sources of citizenship, and two only: birth and naturalization Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law But citizenship by birth is established by the mere *841 fact of birth under the circumstances defined in the Constitution Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts" 169 US, at 702-703 The Court in Wong Kim thus stated a broad and comprehensive definition of naturalization As shown in Wong Kim naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization This inclusive definition has been adopted in several opinions of this Court besides United States v Wong Kim supra Thus in Minor v Happersett, 21 Wall 162, the Court said: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization [N]ew citizens may be born or they may be created by naturalization" And in Elk v Wilkins, 112 US 94 the Court took the position that the Fourteenth Amendment "contemplates two sources of citizenship, and two sources only: birth and naturalization Persons *842 not subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired" 112 US, at 101-102 Moreover, this concept of naturalization is the only one permitted by this Court's consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was "to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State" Slaughter-House Cases, 16 Wall 36, In his study, The Adoption of the Fourteenth Amendment, Professor similarly concluded that the Citizenship Clause "put beyond doubt and cavil in the original law, who were citizens of the United States" H The Adoption of the Fourteenth Amendment 89 (1908) And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens The opinion of the Court in Afroyim described the Citizenship Clause as "calculated completely to control the status of citizenship" 387 US, at 262 And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a "declaration of the classes of individuals to whom citizenship initially attaches" The majority opinion appears at times to rely on the argument that Bellei, while he concededly might *843 have been a naturalized citizen, was not naturalized "in the United States" This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority's view would exclude from the protection of that Clause all those who acquired American citizenship while abroad I cannot accept the narrow and extraordinarily technical reading of the Fourteenth Amendment employed by the Court today If, for example, Congress should decide to vest the authority to naturalize aliens in American embassy officials abroad rather than having the ceremony performed in this country, I have no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment as are those who go through our present naturalization procedures Rather than the technical reading adopted by the majority, it is my view that the word "in" as it appears in the phrase "in the United States" was surely meant to be understood in two somewhat different senses: one can become a citizen of this country by being born within it or by being naturalized into it This interpretation is supported by the legislative history of the Citizenship Clause That clause was added in the Senate rather late in the debates on the Fourteenth Amendment, and as originally introduced its reference was to all those "born in the United States or naturalized by the laws thereof" Cong Globe, 39th Cong, 1st Sess, 2768 (Emphasis added) The final version of the Citizenship Clause was undoubtedly intended to have this same scope See The majority takes the position that Bellei, although admittedly a citizen of this country, was not entitled to the protections of the Citizenship Clause I would not depart from the holding in Afroyim that every American *844 citizen has Fourteenth Amendment citizenship Bellei, as a naturalized American, is entitled to all the rights and privileges of American citizenship, including the right to keep his citizenship until he voluntarily renounces or relinquishes it The Court today puts aside the Fourteenth Amendment as a standard by which to measure congressional action with respect to citizenship, and substitutes in its place the majority's own vague notions of "fairness" The majority takes a new step with the recurring theme that the test of constitutionality is the Court's own view of what is "fair, reasonable, and right" Despite the concession that Bellei was admittedly an American citizen, and despite the holding in Afroyim that the Fourteenth Amendment has put citizenship, once conferred, beyond the power of Congress to revoke, the majority today upholds the revocation of Bellei's citizenship on the ground that the congressional action was not "irrational or arbitrary or unfair" The majority applies the "shock-the-conscience" test to uphold, rather than strike, a federal statute It is a dangerous concept of constitutional law that allows the majority to conclude that, because it cannot say the statute is "irrational or arbitrary or unfair," the statute must be constitutional Of course the Court's construction of the Constitution is not a "strict" one On the contrary, it proceeds on the premise that a majority of this Court can change the Constitution day by day, month by month, and year by year, according to its shifting notions of what is fair, reasonable, and right There was little need for the founders to draft a written constitution if this Court can say it is only binding when a majority finds it fair, reasonable, and right to make it so That is the loosest construction that could be employed It is true that England has moved along very well in the world without a written constitution But with complete familiarity *845 with the English experience, our ancestors determined to draft a written constitution which the members of this Court are sworn to obey While I remain on the Court I shall continue to oppose the power of judges, appointed by changing administrations, to change the Constitution from time to time according to their notions of what is "fair" and "reasonable" I would decide this case not by my views of what is "arbitrary," or what is "fair," but rather by what the Constitution commands I dissent MR JUSTICE BRENNAN, with whom MR

Justice Scalia

second_dissenting

American Trucking Assns., Inc. v. Scheiner

https://www.courtlistener.com/opinion/111942/american-trucking-assns-inc-v-scheiner/

https://www.courtlistener.com/api/rest/v3/clusters/111942/

1986-147

I agree with the Court that the "internal consistency" test it adopts requires invalidation of the Pennsylvania axle tax and marker fee — as it would any unapportioned flat tax involving *304 multistate activities. For the reasons given in my dissent in Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, ante, p. 254, I do not believe that test can be derived from the Constitution or is compelled by our past decisions. The same tax is imposed on in-state as on out-of-state trucks; that is all I would require. See Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950); Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495 (1947); Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U.S. 285 (1935). The Court's disposition relieves it of the need to address appellants' narrower contention that the axle tax is facially discriminatory because the same law that introduced it reduced registration fees for Pennsylvania-based trucks by, for all practical purposes, precisely the amount of the axle taxes. I would reject that challenge as well. The axle tax is imposed uniformly on both in-state and out-of-state vehicles, and is therefore not facially discriminatory. The registration fee is imposed only on in-state trucks, and its reduction likewise does not facially discriminate against interstate commerce. Since both the axle tax and the reduction in registration fees are independently nondiscriminatory, I would sustain them. Appellants rely on Maryland v. Louisiana, 451 U.S. 725 (1981), in which we invalidated Louisiana's use tax on offshore gas because the State credited payments of that tax against other taxes imposed on local commerce, such as the severance tax on in-state production, and exempted gas used for certain in-state activities from the tax. Id., at 732-733, 756. That case is readily distinguishable. Pennsylvania provides no exemption from its axle tax for in-state truckers, and does not permit axle tax payments to be used as credits against the registration fee. The axle tax alone — unlike the gas tax in Maryland v. Louisiana — is on its face nondiscriminatory. *305 It may well be that the lowering of the exclusively intrastate registration fee has the same net effect as would a tax credit for the axle tax. But so would have the establishment of the registration fee and the axle tax at their current levels in the first place. To determine the facially discriminatory character of a tax not on the basis of the tax alone, but on the basis of the structure of a State's tax code, is to extend our case law into a new field, and one in which principled distinctions become impossible. What if, for example, the registration fees for Pennsylvania-based barges, rather than trucks, had been reduced in an amount that precisely compensated for the additional revenues to be derived from the increased axle fees? Or what if Pennsylvania had enacted the axle tax without reducing registration fees, and then one year later made a corresponding reduction in truck registration fees? This case, of course, is more difficult than those examples, because the tax reduction and axle tax both apply to the same mode of transport and were enacted simultaneously. However, to inquire whether a tax reduction is close enough in time or in mode to another tax so that "in effect" the latter should be treated as facially discriminatory is to ask a question that has no answer. Legislative action adjusting taxes on interstate and intrastate activities spans a spectrum, ranging from the obviously discriminatory to the manipulative to the ambiguous to the wholly innocent. Courts can avoid arbitrariness in their review only by policing the entire spectrum (which is impossible), by policing none of it, or by adopting rules which subject to scrutiny certain well-defined classes of actions thought likely to come at or near the discriminatory end of the spectrum. We have traditionally followed the last course, confining our disapproval to forms of tax that seem clearly designed to discriminate,[*] and accepting the fact that some amount *306 of discrimination may slip through our net. A credit against intrastate taxes falls readily within the highly suspect category; a reduction of intrastate taxes to take account of increased revenue from a nondiscriminatory axle tax does not. I acknowledge that the distinction between a credit and a straight reduction is a purely formal one, but it seems to me less absurd than what we will be driven to if we abandon it. The axle tax and registration fee reduction in this case appeared in the same bill. Extend the rule to treat that as "in effect" a tax credit, and the next case will involve two different bills enacted the same day, or a week apart, or at the beginning and end of the same session. A line must be drawn somewhere, and (in the absence of direction from any authoritative text) I would draw it here.

I agree with the Court that the "internal consistency" test it adopts requires invalidation of the Pennsylvania axle tax and marker fee — as it would any unapportioned flat tax involving *304 multistate activities. For the reasons given in my dissent in Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, ante, p. 254, I do not believe that test can be derived from the Constitution or is compelled by our past decisions. The same tax is imposed on in-state as on out-of-state trucks; that is all I would require. See Capitol Greyhound ; Aero Mayflower Transit ; Aero Mayflower Transit The Court's disposition relieves it of the need to address appellants' narrower contention that the axle tax is facially discriminatory because the same law that introduced it reduced registration fees for Pennsylvania-based trucks by, for all practical purposes, precisely the amount of the axle taxes. I would reject that challenge as well. The axle tax is imposed uniformly on both in-state and out-of-state vehicles, and is therefore not facially discriminatory. The registration fee is imposed only on in-state trucks, and its reduction likewise does not facially discriminate against interstate commerce. Since both the axle tax and the reduction in registration fees are independently nondiscriminatory, I would sustain them. Appellants rely on in which we invalidated Louisiana's use tax on offshore gas because the State credited payments of that tax against other taxes imposed on local commerce, such as the severance tax on in-state production, and exempted gas used for certain in-state activities from the tax. That case is readily distinguishable. Pennsylvania provides no exemption from its axle tax for in-state truckers, and does not permit axle tax payments to be used as credits against the registration fee. The axle tax alone — unlike the gas tax in — is on its face nondiscriminatory. *305 It may well be that the lowering of the exclusively intrastate registration fee has the same net effect as would a tax credit for the axle tax. But so would have the establishment of the registration fee and the axle tax at their current levels in the first place. To determine the facially discriminatory character of a tax not on the basis of the tax alone, but on the basis of the structure of a State's tax code, is to extend our case law into a new field, and one in which principled distinctions become impossible. What if, for example, the registration fees for Pennsylvania-based barges, rather than trucks, had been reduced in an amount that precisely compensated for the additional revenues to be derived from the increased axle fees? Or what if Pennsylvania had enacted the axle tax without reducing registration fees, and then one year later made a corresponding reduction in truck registration fees? This case, of course, is more difficult than those examples, because the tax reduction and axle tax both apply to the same mode of transport and were enacted simultaneously. However, to inquire whether a tax reduction is close enough in time or in mode to another tax so that "in effect" the latter should be treated as facially discriminatory is to ask a question that has no answer. Legislative action adjusting taxes on interstate and intrastate activities spans a spectrum, ranging from the obviously discriminatory to the manipulative to the ambiguous to the wholly innocent. Courts can avoid arbitrariness in their review only by policing the entire spectrum (which is impossible), by policing none of it, or by adopting rules which subject to scrutiny certain well-defined classes of actions thought likely to come at or near the discriminatory end of the spectrum. We have traditionally followed the last course, confining our disapproval to forms of tax that seem clearly designed to discriminate,[*] and accepting the fact that some amount *306 of discrimination may slip through our net. A credit against intrastate taxes falls readily within the highly suspect category; a reduction of intrastate taxes to take account of increased revenue from a nondiscriminatory axle tax does not. I acknowledge that the distinction between a credit and a straight reduction is a purely formal one, but it seems to me less absurd than what we will be driven to if we abandon it. The axle tax and registration fee reduction in this case appeared in the same bill. Extend the rule to treat that as "in effect" a tax credit, and the next case will involve two different bills enacted the same day, or a week apart, or at the beginning and end of the same session. A line must be drawn somewhere, and (in the absence of direction from any authoritative text) I would draw it here.

Justice Marshall

dissenting

Strycker's Bay Neighborhood Council, Inc. v. Karlen

https://www.courtlistener.com/opinion/110165/stryckers-bay-neighborhood-council-inc-v-karlen/

https://www.courtlistener.com/api/rest/v3/clusters/110165/

1979-014

The issue raised by these cases is far more difficult than the per curiam opinion suggests. The Court of Appeals held that the Secretary of Housing and Urban Development (HUD) had acted arbitrarily in concluding that prevention of a delay in the construction process justified the selection of a housing site which could produce adverse social environmental effects, including racial and economic concentration. Today the majority responds that "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences," and that in this litigation "there is no doubt that HUD considered the environmental consequences of its decision to redesignate the proposed site for low-income housing. NEPA requires no more." The majority finds support for this conclusion in the closing paragraph *229 of our decision in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). Vermont Yankee does not stand for the broad proposition that the majority advances today. The relevant passage in that opinion was meant to be only a "further observation of some relevance to this case," id., at 557. That "observation" was a response to this Court's perception that the Court of Appeals in that case was attempting "under the guise of judicial review of agency action" to assert its own policy judgment as to the desirability of developing nuclear energy as an energy source for this Nation, a judgment which is properly left to Congress. Id., at 558. The Court of Appeals had remanded the case to the agency because of "a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below," ibid. It was in this context that the Court remarked that "NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural." Ibid. (emphasis supplied). Accordingly, "[a]dministrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute," ibid. (emphasis supplied). Thus Vermont Yankee does not stand for the proposition that a court reviewing agency action under NEPA is limited solely to the factual issue of whether the agency's "considered" environmental consequences. The agency's decision must still be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S. C. § 706 (2) (A), and the reviewing court must still insure that the agency "has taken a `hard look' at environmental consequences," Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21 (1976). In the present case, the Court of Appeals did not "substitute its judgment for that of the agency as to the environmental consequences of its actions," ibid., for HUD in its *230 Special Environmental Clearance Report acknowledged the adverse environmental consequences of its proposed action: "the choice of Site 30 for development as a 100 percent low-income project has raised valid questions about the potential social environmental impacts involved." These valid questions arise from the fact that 68% of all public housing units would be sited on only one crosstown axis in this area of New York City. As the Court of Appeals observed, the resulting high concentration of low-income housing would hardly further racial and economic integration. The environmental "impact . . . on social fabric and community structures" was given a B rating in the report, indicating that from this perspective the project is "questionable" and ameliorative measures are "mandated." The report lists 10 ameliorative measures necessary to make the project acceptable. The report also discusses two alternatives, Sites 9 and 41, both of which are the appropriate size for the project and require "only minimal" amounts of relocation and clearance. Concerning Site 9 the report explicitly concludes that "[f]rom the standpoint of social environmental impact, this location would be superior to Site 30 for the development of low-rent public housing." The sole reason for rejecting the environmentally superior site was the fact that if the location were shifted to Site 9, there would be a projected delay of two years in the construction of the housing. The issue before the Court of Appeals, therefore, was whether HUD was free under NEPA to reject an alternative acknowledged to be environmentally preferable solely on the ground that any change in sites would cause delay. This was hardly a "peripheral issue" in the case. Whether NEPA, which sets forth "significant substantive goals," Vermont Yankee Nuclear Power Corp. v. NRDC, supra, at 558, permits a projected 2-year time difference to be controlling over environmental superiority is by no means clear. Resolution of the issue, however, is certainly within the normal scope of review of agency action to determine if it is arbitrary, *231 capricious, or an abuse of discretion.[*] The question whether HUD can make delay the paramount concern over environmental superiority is essentially a restatement of the question whether HUD in considering the environmental consequences of its proposed action gave those consequences a "hard look," which is exactly the proper question for the reviewing court to ask. Kleppe v. Sierra Club, supra, at 410, n. 21. The issue of whether the Secretary's decision was arbitrary or capricious is sufficiently difficult and important to merit plenary consideration in this Court. Further, I do not subscribe to the Court's apparent suggestion that Vermont Yankee limits the reviewing court to the essentially mindless task of determining whether an agency "considered" environmental factors even if that agency may have effectively decided to ignore those factors in reaching its conclusion. Indeed, I cannot believe that the Court would adhere to that position in a different factual setting. Our cases establish that the arbitrary-or-capricious standard prescribes a "searching and careful" judicial inquiry designed to ensure that the agency has not exercised its discretion in an unreasonable manner. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Believing that today's summary reversal represents a departure from that principle, I respectfully dissent. It is apparent to me that this is not the type of case for a summary disposition. We should at least have a plenary hearing.

The issue raised by these cases is far more difficult than the per curiam opinion suggests. The Court of Appeals held that the Secretary of Housing and Urban Development (HUD) had acted arbitrarily in concluding that prevention of a delay in the construction process justified the selection of a housing site which could produce adverse social environmental effects, including racial and economic concentration. Today the majority responds that "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences," and that in this litigation "there is no doubt that HUD considered the environmental consequences of its decision to redesignate the proposed site for low-income housing. NEPA requires no more." The majority finds support for this conclusion in the closing paragraph *229 of our decision in Vermont Yankee Nuclear Power Vermont Yankee does not stand for the broad proposition that the majority advances today. The relevant passage in that opinion was meant to be only a "further observation of some relevance to this case," That "observation" was a response to this Court's perception that the Court of Appeals in that case was attempting "under the guise of judicial review of agency action" to assert its own policy judgment as to the desirability of developing nuclear energy as an energy source for this Nation, a judgment which is properly left to Congress. at The Court of Appeals had remanded the case to the agency because of "a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below," It was in this context that the Court remarked that "NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural." Accordingly, "[a]dministrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute," Thus Vermont Yankee does not stand for the proposition that a court reviewing agency action under NEPA is limited solely to the factual issue of whether the agency's "considered" environmental consequences. The agency's decision must still be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S. C. 706 (2) (A), and the reviewing court must still insure that the agency "has taken a `hard look' at environmental consequences," In the present case, the Court of Appeals did not "substitute its judgment for that of the agency as to the environmental consequences of its actions," ib for HUD in its *230 Special Environmental Clearance Report acknowledged the adverse environmental consequences of its proposed action: "the choice of Site 30 for development as a 100 percent low-income project has raised valid questions about the potential social environmental impacts involved." These valid questions arise from the fact that 68% of all public housing units would be sited on only one crosstown axis in this area of New York City. As the Court of Appeals observed, the resulting high concentration of low-income housing would hardly further racial and economic integration. The environmental "impact on social fabric and community structures" was given a B rating in the report, indicating that from this perspective the project is "questionable" and ameliorative measures are "mandated." The report lists 10 ameliorative measures necessary to make the project acceptable. The report also discusses two alternatives, Sites 9 and 41, both of which are the appropriate size for the project and require "only minimal" amounts of relocation and clearance. Concerning Site 9 the report explicitly concludes that "[f]rom the standpoint of social environmental impact, this location would be superior to Site 30 for the development of low-rent public housing." The sole reason for rejecting the environmentally superior site was the fact that if the location were shifted to Site 9, there would be a projected delay of two years in the construction of the housing. The issue before the Court of Appeals, therefore, was whether HUD was free under NEPA to reject an alternative acknowledged to be environmentally preferable solely on the ground that any change in sites would cause delay. This was hardly a "peripheral issue" in the case. Whether NEPA, which sets forth "significant substantive goals," Vermont Yankee Nuclear Power at permits a projected 2-year time difference to be controlling over environmental superiority is by no means clear. Resolution of the issue, however, is certainly within the normal scope of review of agency action to determine if it is arbitrary, *231 capricious, or an abuse of discretion.[*] The question whether HUD can make delay the paramount concern over environmental superiority is essentially a restatement of the question whether HUD in considering the environmental consequences of its proposed action gave those consequences a "hard look," which is exactly the proper question for the reviewing court to ask. at The issue of whether the Secretary's decision was arbitrary or capricious is sufficiently difficult and important to merit plenary consideration in this Court. Further, I do not subscribe to the Court's apparent suggestion that Vermont Yankee limits the reviewing court to the essentially mindless task of determining whether an agency "considered" environmental factors even if that agency may have effectively decided to ignore those factors in reaching its conclusion. Indeed, I cannot believe that the Court would adhere to that position in a different factual setting. Our cases establish that the arbitrary-or-capricious standard prescribes a "searching and careful" judicial inquiry designed to ensure that the agency has not exercised its discretion in an unreasonable manner. Citizens To Preserve Overton Park, Believing that today's summary reversal represents a departure from that principle, I respectfully dissent. It is apparent to me that this is not the type of case for a summary disposition. We should at least have a plenary hearing.

Justice White

majority

Longshoremen v. Davis

https://www.courtlistener.com/opinion/111673/longshoremen-v-davis/

https://www.courtlistener.com/api/rest/v3/clusters/111673/

1985-089

The opinion in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), set forth a general standard for determining when state proceedings or regulations are pre-empted by the provisions of the National Labor Relations Act (NLRA or Act), see 29 U.S. C. § 151 et seq. (1982 ed. and Supp. II): Subject to exception only in limited circumstances, "[w]hen an activity is arguably subject to § 7 or § 8 of the Act [29 U.S. C. § 157 or § 158], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S., at 245. This general standard has been applied in a multitude of cases decided since Garmon, and it must be applied again today. Before addressing that question, however, we must consider the very nature of such pre-emption — whether Garmon pre-emption is in the nature of an affirmative defense *382 that must be asserted in the trial court or be considered forever waived or whether it is in the nature of a challenge to a court's power to adjudicate that may be raised at any time. I Appellee Larry Davis was formerly employed by Ryan-Walsh Stevedoring Co. in Mobile, Alabama. At the times relevant to the events that gave rise to this suit, he was a ship superintendent or trainee ship superintendent. The ship superintendents apparently served as the immediate superiors of the longshoremen employed by Ryan-Walsh. They were on salary, however, and their compensation was generally lower than that received by the longshoremen, who worked on an hourly basis. In early 1981, Ben Trione, one of the ship superintendents who worked for Ryan-Walsh, contacted appellant International Longshoremen's Association (ILA or Union), a union that represents longshoremen and other employees on the waterfront, to discuss the possibility of organizing the superintendents and affiliating with the Union. Although the parties here dispute the content of the conversations that occurred at this stage between Trione and the ILA representatives regarding the ship superintendents and their eligibility for union membership, it is undisputed that a meeting of the superintendents was organized by Trione and attended by Benny Holland, an ILA official from Houston, Texas. At this meeting, several of the superintendents expressed a fear of being discharged for participating in union-related activities. According to Davis' witnesses, Holland's response to this was to reassure them that the Union would get them their jobs back with backpay if that happened. According to Holland, however, Holland's response was that they would be protected in that manner only if they were determined not to be supervisors under the Act and that he did *383 not know whether or not they would be considered supervisors.[1] Holland further testified that he had submitted this issue to the Union's lawyers and had not received a definitive opinion from them by the time of the meeting. The meeting, according to all witnesses, resulted in a number of the ship superintendents, including Davis, signing pledge cards and a union charter application with the ILA.[2] On the day following the organizational meeting, Ryan-Walsh fired Trione. Trione contacted the ILA, which supplied him with an attorney. The attorney filed an unfair labor practice charge against Ryan-Walsh with the National Labor Relations Board, alleging that Trione was an employee under the Act and that Ryan-Walsh had violated § 8(a)(1) and § 8(a)(3) of the Act by discharging him for participating in *384 union activities. See 29 U.S. C. §§ 158(a)(1), (3).[3] The NLRB's Regional Director, however, determined that Trione was a supervisor under the Act and declined to issue a complaint.[4] Trione did not, as he had a right to do, appeal this determination to the NLRB General Counsel. See 29 CFR § 102.19 (1985). Shortly thereafter, Davis was also discharged *385 by Ryan-Walsh, apparently for his continued efforts to organize the ship superintendents and to join the Union. In response to his discharge, Davis filed this suit against the ILA in the Circuit Court of Mobile County, alleging fraud and misrepresentation under Ala. Code § 6-5-101 (1975).[5] The case proceeded to trial, and a jury entered a verdict in Davis' favor in the amount of $75,000. Throughout the trial, the Union defended the suit on the merits, raising no issue that the suit was pre-empted by the NLRA. In its motion for judgment notwithstanding the verdict, however, the ILA raised for the first time a claim that the state court lacked jurisdiction over the case because the filed had "been pre-empted by federal law and federal jurisdiction." App. 96a. The Circuit Court denied the Union's motion without opinion and entered judgment on the jury's verdict. On appeal to the Supreme Court of Alabama, the ILA argued that pre-emption was not a waivable defense and that the state fraud and misrepresentation action was pre-empted under Garmon. Although acknowledging that other state courts had adopted the ILA's position that NLRA pre-emption was nonwaivable,[6] the Alabama court held that "[i]t is not the circuit court's subject matter jurisdiction to adjudicate a damage claim for the tort of fraud — even if it arises in the context of a labor-related dispute — that is pre-empted. Rather, it is the state court's exercise of that power that is subject to preemption." 470 So. 2d 1215, 1216 (1985). The court's view was that as a state court of general jurisdiction the Circuit Court had had subject-matter jurisdiction over this ordinary tort claim for damages. As a waivable defense, the pre-emption claim was required under Alabama *386 law to be affirmatively pleaded. Since it was not so pleaded, it was deemed waived.[7] The Alabama Supreme Court, although holding that the ILA's pre-emption claim had been waived, stated in a footnote that if it had had occasion to reach the merits, it would have found no pre-emption: "The instant facts fall squarely within the `peripheral concern' exception to federal preemption of state jurisdiction of labor-related disputes. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243-44 (1959). The National Labor Relations Board has already determined that an employer's supervisors are not protected by the Labor Management Relations Act. Thus, in this case, [Davis] has no remedy before the NLRB, and this dispute, although somewhat laborrelated, is, at most, only of `peripheral concern' to the NLRB. See, e. g., Linn v. United Plant Guard Workers Local 114, 383 U.S. 53 (1966)." Id., at 1216-1217, n. 2 (citations omitted). The Alabama Supreme Court accordingly affirmed the judgment against the Union. The Union appealed to this Court; Davis moved to dismiss the appeal on the ground that the decision below rested on an adequate and independent state ground because the Alabama Supreme Court's decision was based on an application of a state procedural rule. The ILA's submission, however, raised a substantial question whether reliance on the procedural rule rested on an erroneous view of the scope of Garmon pre-emption, a matter of *387 federal law, and hence whether the procedural ground relied on was adequate and independent. We noted probable jurisdiction, 474 U.S. 899 (1985).[8] II A Given the reliance of the Alabama Supreme Court on its procedural rule governing the presentation of affirmative defenses, we first decide whether that rule in this case represents an independent and adequate state ground supporting the judgment below. If it does, our review is at an end, for we have no authority to review state determinations of purely state law. Nor do we review federal issues that can have no effect on the state court's judgment. See, e. g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 566 (1977); Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945); Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935). The inquiry into the sufficiency of the asserted state ground, however, is one that we undertake ourselves. See Michigan v. Long, 463 U.S. 1032, 1038 (1983); Abie State Bank v. Bryan, 282 U.S. 765, 773 (1931). In concluding that the Union's pre-emption claim was procedurally barred, the Alabama Supreme Court first held that because the Mobile County Circuit Court, as a state court of general jurisdiction, had subject-matter jurisdiction over the simple tort claim of misrepresentation, there could be no pre-emption of that court's actual jurisdiction. Only the exercise of that jurisdiction could be pre-empted. This explanation has a certain logic to it; but the point is not whether state law gives the state courts jurisdiction over particular controversies but whether jurisdiction provided by *388 state law is itself pre-empted by federal law vesting exclusive jurisdiction over that controversy in another body. It is clearly within Congress' powers to establish an exclusive federal forum to adjudicate issues of federal law in a particular area that Congress has the authority to regulate under the Constitution. See, e. g., Kalb v. Feuerstein, 308 U.S. 433 (1940). Whether it has done so in a specific case is the question that must be answered when a party claims that a state court's jurisdiction is pre-empted. Such a determination of congressional intent and of the boundaries and character of a pre-empting congressional enactment is one of federal law. Pre-emption, the practical manifestation of the Supremacy Clause, is always a federal question. If the Alabama procedural ruling under state law implicates an underlying question of federal law, however, the state law is not an independent and adequate state ground supporting the judgment: "[W]hen resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded. . . . In such a case, the federal-law holding is integral to the state court's disposition of the matter, and our ruling on the issue is in no respect advisory." Ake v. Oklahoma, 470 U.S. 68, 75 (1985) (citing Herb v. Pitcairn, supra, at 126; Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U.S. 157, 164 (1917)). To determine the sufficiency of the state procedural ground relied upon by the Alabama Supreme Court we must ascertain whether that court correctly resolved the antecedent federal question regarding the nature of Garmon pre-emption under the NLRA. Specifically, the question is whether Garmon pre-emption is a waivable affirmative defense such that a state court may adjudicate an otherwise pre-empted claim if the Garmon defense is not timely raised *389 or whether Garmon pre-emption is a nonwaivable foreclosure of the state court's very jurisdiction to adjudicate. B The Court's opinion in Garner v. Teamsters, 346 U.S. 485, 490-491 (1953), articulated what has come to be the accepted basis for the broadly pre-emptive scope of the NLRA: "Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. . . . A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law." Building on this cornerstone, the Garmon Court went on to set out the now well-established scope of NLRA pre-emption. Given the NLRA's "complex and interrelated federal scheme of law, remedy, and administration," 359 U.S., at 243, the Court held that "due regard for the federal enactment requires that state jurisdiction must yield," id., at 244, when the activities sought to be regulated by a State are clearly or may fairly be assumed to be within the purview of § 7 or § 8. The Court acknowledged that "[a]t times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections." Ibid. Even in such ambiguous *390 situations, however, the Court concluded that "courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board." Id., at 244-245. Thus, the Court held that "[w]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." Id., at 245. In Construction Laborers v. Curry, 371 U.S. 542 (1963), we considered the application of these principles to a situation in which the Georgia courts had awarded relief based on a complaint that contained allegations that made out "at least an arguable violation of § 8(b)." Id., at 546. There, we reviewed a claim that "the subject matter of [the] suit was within the exclusive jurisdiction of the National Labor Relations Board," id., at 543, and held that, even though the state court was authorized to adjudicate the claim as a matter of state law, the state court "clearly exceeded its power" in awarding relief on the complaint. Id., at 548. Specifically, "the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board." Id., at 546-547. That our conclusion was in fact jurisdictional was accentuated by our discussion of the procedural context in which the case arose. The state court had awarded a temporary injunction only, and a permanent order had not yet been issued. We rejected, however, the argument that the judgment was not yet final for purposes of our own jurisdiction: "[W]e believe our power to review this case rests upon solid ground. The federal question raised by petitioner in the Georgia court, and here, is whether the Georgia courts had power to proceed with and determine this controversy. The issue ripe for review is not whether a *391 Georgia court has erroneously decided a matter of federal law in a case admittedly within its jurisdiction nor is it the question of whether federal or state law governs a case properly before the Georgia courts. What we do have here is a judgment of the Georgia court finally and erroneously asserting its jurisdiction to deal with a controversy which is beyond its power and instead is within the exclusive domain of the National Labor Relations Board." Id., at 548 (citations omitted). See also Belknap, Inc. v. Hale, 463 U.S. 491, 497-498, n. 5 (1983). Curry made clear that when a state proceeding or regulation is claimed to be pre-empted by the NLRA under Garmon, the issue is a choice-of-forum rather than a choice-of-law question. As such, it is a question whether the State or the Board has jurisdiction over the dispute. If there is pre-emption under Garmon, then state jurisdiction is extinguished.[9] Since Garmon and Curry, we have reiterated many times the general pre-emption standard set forth in Garmon and the jurisdictional nature of Garmon pre-emption; we have also reaffirmed that our decisions describing the nature of Garmon pre-emption and defining its boundaries have rested on a determination that in enacting the NLRA Congress intended for the Board generally to exercise exclusive jurisdiction in this area. See, e. g., Journeymen v. Borden, 373 U.S. 690, 698 (1963); Iron Workers v. Perko, 373 U.S. 701, 708 (1963); Liner v. Jafco, Inc., 375 U.S. 301, 309-310 (1964); Linn v. Plant Guard Workers, 383 U.S. 53, 60 (1966); Vaca v. Sipes, 386 U.S. 171, 179 (1967); Motor Coach Employees *392 v. Lockridge, 403 U.S. 274, 285-291 (1971); Farmer v. Carpenters, 430 U.S. 290, 296-297, 305 (1977); Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 188-190 (1978); Operating Engineers v. Jones, 460 U.S. 669, 676 (1983); Belknap, Inc. v. Hale, supra, at 510-511; Brown v. Hotel Employees, 468 U.S. 491, 502-503 (1984); Wisconsin Dept. of Industry, Labor and Human Relations v. Gould Inc., 475 U.S. 282, 286 (1986). Davis does not seriously dispute this conclusion — at least as a general matter. He concedes, in fact, that "when a particular issue has been placed by Congress within the primary and exclusive jurisdiction of the NLRB, a state court will have no subject matter jurisdiction to adjudicate the issue. In such cases, any judgment issued by the state court will be void ab initio because subject matter jurisdiction is pre-empted." Brief for Appellee 13. Davis notes, however, that this Court has acknowledged that Garmon does not pre-empt "all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States." Lockridge, supra, at 289. Specifically, Davis points to Garmon's own recognition that some controversies that are arguably subject to § 7 or § 8 are not pre-empted: "[D]ue regard for the presuppositions of our embracing federal system . . . has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." 359 U.S., at 243-244 (citations omitted). Both before and since Garmon we have identified claims that fall within one or both these articulated exceptions. See, e. g., Belknap, Inc. v. Hale, supra; Farmer v. Carpenters, *393 supra; Linn v. Plant Guard Workers, supra; Automobile Workers v. Russell, 356 U.S. 634 (1958); Machinists v. Gonzales, 356 U.S. 617 (1958); Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957); Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 (1954).[10] But these cases serve only as more precise demarcations of the scope of Garmon pre-emption. They have not redefined the nature of that pre-emption in any way. A claim of Garmon pre-emption is a claim that the state court has no power to adjudicate the subject matter of the case, and when a claim of Garmon pre-emption is raised, it must be considered and resolved by the state court. Consequently, the state procedural rule relied on by the Alabama Supreme Court to support the judgment below was not a sufficient state ground, and the Union was and is entitled to an adjudication of its pre-emption claim on the merits.[11] *394 III As the Garmon line of cases directs, the pre-emption inquiry is whether the conduct at issue was arguably protected or prohibited by the NLRA. That much is clear. There is also no dispute that if Davis was a supervisor, he was legally fired,[12] the Union misspoke if it represented that there was legal redress for the discharge, and there is no pre-emption. But if Davis was an employee, his discharge for union activities was an unfair practice, the Union was protected in its attempt to interest him in the Union, and it did not err in representing that if he was discharged for joining the Union, there would be a remedy. We should inquire, then, whether Davis was arguably an employee, rather than a supervisor. If he was, the issue was to be initially decided by the NLRB, not the state courts. The precondition for pre-emption, that the conduct be "arguably" protected or prohibited, is not without substance. It is not satisfied by a conclusory assertion of pre-emption and would therefore not be satisfied in this case by a claim, *395 without more, that Davis was an employee rather than a supervisor. If the word "arguably" is to mean anything, it must mean that the party claiming pre-emption is required to demonstrate that his case is one that the Board could legally decide in his favor. That is, a party asserting pre-emption must advance an interpretation of the Act that is not plainly contrary to its language and that has not been "authoritatively rejected" by the courts or the Board. Marine Engineers v. Interlake S.S. Co., 370 U.S. 173, 184 (1962). The party must then put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation. In this case, therefore, because the pre-emption issue turns on Davis' status, the Union's claim of pre-emption must be supported by a showing sufficient to permit the Board to find that Davis was an employee, not a supervisor. Our examination of the record leads us to conclude that the Union has not carried its burden in this case. Expecting that the Union would put its best foot forward in this Court, we look first at its submission here that there is an arguable case for pre-emption. The Union's brief states that its conduct was protected by federal law if Davis was an employee, that in order to find the Union liable the jury must have found that Davis was a supervisor, and that "the state law controversy of whether the Union made a misrepresentation and the federal controversy of whether the superintendents were in fact supervisors are `the same in a fundamental respect.' " Brief for Appellant 16 (quoting Operating Engineers v. Jones, 460 U. S., at 682). So far, the argument proceeds in the right direction. As for the critical issue of whether Davis is an employee or a supervisor, the Union asserts only that "[a]bsent a clear determination by the NLRB that the ship superintendents are supervisors rather than employees, superintendents are arguably employees and the state is preempted from applying its law." Brief for Appellant 13. In making this contention, the ILA *396 relies on our cases indicating that pre-emption can be avoided if an individual's supervisory status has been determined " `with unclouded legal significance.' " Hanna Mining Co. v. Marine Engineers, 382 U.S. 181, 190 (1965) (quoting Garmon, 359 U. S., at 246). See also Jones, supra, at 680. It does not undertake any examination of Davis' duties as a ship superintendent. It makes no attempt to show that Davis was more like an employee than a supervisor as those terms are defined in §§ 2(1) and (11) of the Act, 29 U.S. C. §§ 152(1) and (11).[13] It points to no evidence in the record indicating that Davis was not a supervisor. It does not argue that Davis' job was different from Trione's or that the Regional Director was wrong in finding that Trione was a supervisor. Its sole submission is that Davis was arguably an employee because the Board has not decided that he was a supervisor. We cannot agree that Davis' arguable status as a supervisor is made out by the mere fact that the Board has not finally determined his status. The lack of a Board decision in no way suggests how it would or could decide the case if it had the opportunity to do so. To accept the Union's submission would be essentially equivalent to allowing a conclusory claim of pre-emption and would effectively eliminate the necessity to make out an arguable case. The better view is that those claiming pre-emption must carry the burden of showing at least an arguable case before the jurisdiction of a state court will be ousted. Moreover, neither Garmon nor Hanna Mining supports the Union's position. Garmon itself is the source of the arguably protected or prohibited standard for pre-emption. The Court stated, 359 U.S., at 244: "When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by *397 § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of the federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law." Later the Court said: "When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence" of the Board. Id., at 245. Of course, the Court explained, the Board might decide the case one way or the other, but in the "absence of the Board's clear determination that an activity is neither protected or prohibited," id., at 246, it is not for the courts to decide the case. It is apparent from these passages that a court first must decide whether there is an arguable case for pre-emption; if there is, it must defer to the Board, and only if the Board decides that the conduct is not protected or prohibited may the court entertain the litigation. Nothing in Garmon suggests that an arguable case for pre-emption is made out simply because the Board has not decided the general issue one way or the other. Hanna Mining also does nothing for the Union's submission. The Court there, relying on Garmon, held that there was no pre-emption because the Board or its General Counsel had in fact adversely decided the issues on which the claim of pre-emption rested. Obviously, no inference may be drawn from that decision that a party makes out a case for pre-emption by merely asserting that the issue involved has not been decided by the Board. The Union's position is also negated by Interlake S. S. Co., supra, where the Court found pre-emption only after examining the facts and deciding "whether the evidence in this case was sufficient to show that either of [the organizations] was arguably a `labor organization' within the contemplation of § 8(b)." Id., at 178. The Court went on to hold that while there was persuasive evidence *398 that the marine engineers were supervisors, the Board had nevertheless effectively decided that the union involved was a labor organization within the meaning of the Act. While agreeing with the principles announced by the Court, Justice Douglas dissented because he had a different view of the facts of the case. Consequently, a party asserting pre-emption must put forth enough evidence to enable a court to conclude that the activity is arguably subject to the Act. Here, the Union points to no evidence in support of its assertion that Davis was arguably an employee. The Union's claim of pre-emption in the state courts was also devoid of any factual or legal showing that Davis was arguably not a supervisor but an employee. In this respect, its brief in the Alabama Supreme Court was similar to its brief here, and its post-trial motion for judgment in the trial court contained no more than a conclusory assertion that state jurisdiction was pre-empted. Until that motion, no claim of pre-emption had been made out, but whether Davis was a supervisor or an employee was a relevant inquiry in making out his case. He alleged in his complaint that he was a supervisor. The Union answered that it was without sufficient information to form a belief as to whether or not he was. Moreover, in moving for summary judgment or for directed verdict at the close of Davis' case and at the close of all the evidence the Union did not assert that Davis was an employee, not a supervisor, let alone point to any evidence to support such a claim.[14] In sum, the Union has not met its burden of showing that the conduct here was arguably subject to the Act. IV We hold that where state law is pre-empted by the NLRA under Garmon and our subsequent cases, the state courts lack the very power to adjudicate the claims that trigger pre-emption. *399 Thus, the Alabama Supreme Court's holding that the ILA had waived its pre-emption claim by noncompliance with state procedural rules governing affirmative defenses did not present an independent and adequate state ground supporting the judgment below, and that court erred in declining to address that claim on the merits. On the merits, we reject the ILA's characterization of our prior cases as holding that the mere lack of a conclusive determination by the Board that an activity is without the purview of the Act renders that activity arguably subject to the Act. Rather, we reaffirm our previously expressed view that the party asserting pre-emption must make an affirmative showing that the activity is arguably subject to the Act and we therefore affirm the judgment of the Alabama Supreme Court. So ordered. JUSTICE REHNQUIST, with whom JUSTICE POWELL, JUSTICE STEVENS, and JUSTICE O'CONNOR join, concurring in part and concurring in the judgment.

The opinion in San Diego Building Trades set forth a general standard for determining when state proceedings or regulations are pre-empted by the provisions of the National Labor Relations Act (NLRA or Act), see 29 U.S. C. 151 et seq. (1982 ed. and Supp. II): Subject to exception only in limited circumstances, "[w]hen an activity is arguably subject to 7 or 8 of the Act [29 U.S. C. 157 or 158], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." This general standard has been applied in a multitude of cases decided since and it must be applied again today. Before addressing that question, however, we must consider the very nature of such pre-emption — whether pre-emption is in the nature of an affirmative defense *382 that must be asserted in the trial court or be considered forever waived or whether it is in the nature of a challenge to a court's power to adjudicate that may be raised at any time. I Appellee Larry Davis was formerly employed by Ryan-Walsh Stevedoring Co. in Mobile, Alabama. At the times relevant to the events that gave rise to this suit, he was a ship superintendent or trainee ship superintendent. The ship superintendents apparently served as the immediate superiors of the longshoremen employed by Ryan-Walsh. They were on salary, however, and their compensation was generally lower than that received by the longshoremen, who worked on an hourly basis. In early 1981, Ben Trione, one of the ship superintendents who worked for Ryan-Walsh, contacted appellant International Longshoremen's Association (ILA or Union), a union that represents longshoremen and other employees on the waterfront, to discuss the possibility of organizing the superintendents and affiliating with the Union. Although the parties here dispute the content of the conversations that occurred at this stage between Trione and the ILA representatives regarding the ship superintendents and their eligibility for union membership, it is undisputed that a meeting of the superintendents was organized by Trione and attended by Benny Holland, an ILA official from Houston, Texas. At this meeting, several of the superintendents expressed a fear of being discharged for participating in union-related activities. According to Davis' witnesses, Holland's response to this was to reassure them that the Union would get them their jobs back with backpay if that happened. According to Holland, however, Holland's response was that they would be protected in that manner only if they were determined not to be supervisors under the Act and that he did *383 not know whether or not they would be considered supervisors.[1] Holland further testified that he had submitted this issue to the Union's lawyers and had not received a definitive opinion from them by the time of the meeting. The meeting, according to all witnesses, resulted in a number of the ship superintendents, including Davis, signing pledge cards and a union charter application with the ILA.[2] On the day following the organizational meeting, Ryan-Walsh fired Trione. Trione contacted the ILA, which supplied him with an attorney. The attorney filed an unfair labor practice charge against Ryan-Walsh with the National Labor Relations Board, alleging that Trione was an employee under the Act and that Ryan-Walsh had violated 8(a)(1) and 8(a)(3) of the Act by discharging him for participating in *384 union activities. See 29 U.S. C. 158(a)(1), (3).[3] The NLRB's Regional Director, however, determined that Trione was a supervisor under the Act and declined to issue a complaint.[4] Trione did not, as he had a right to do, appeal this determination to the NLRB General Counsel. See 29 CFR 102.19 Shortly thereafter, Davis was also discharged *385 by Ryan-Walsh, apparently for his continued efforts to organize the ship superintendents and to join the Union. In response to his discharge, Davis filed this suit against the ILA in the Circuit Court of Mobile County, alleging fraud and misrepresentation under Ala. Code 6-5-101 (19).[5] The case proceeded to trial, and a jury entered a verdict in Davis' favor in the amount of $,000. Throughout the trial, the Union defended the suit on the merits, raising no issue that the suit was pre-empted by the NLRA. In its motion for judgment notwithstanding the verdict, however, the ILA raised for the first time a claim that the state court lacked jurisdiction over the case because the filed had "been pre-empted by federal law and federal jurisdiction." App. 96a. The Circuit Court denied the Union's motion without opinion and entered judgment on the jury's verdict. On appeal to the Supreme Court of Alabama, the ILA argued that pre-emption was not a waivable defense and that the state fraud and misrepresentation action was pre-empted under Although acknowledging that other state courts had adopted the ILA's position that NLRA pre-emption was nonwaivable,[6] the Alabama court held that "[i]t is not the circuit court's subject matter jurisdiction to adjudicate a damage claim for the tort of fraud — even if it arises in the context of a labor-related dispute — that is pre-empted. Rather, it is the state court's exercise of that power that is subject to preemption." The court's view was that as a state court of general jurisdiction the Circuit Court had had subject-matter jurisdiction over this ordinary tort claim for damages. As a waivable defense, the pre-emption claim was required under Alabama *386 law to be affirmatively pleaded. Since it was not so pleaded, it was deemed waived.[7] The Alabama Supreme Court, although holding that the ILA's pre-emption claim had been waived, in a footnote that if it had had occasion to reach the merits, it would have found no pre-emption: "The instant facts fall squarely within the `peripheral concern' exception to federal preemption of state jurisdiction of labor-related disputes. San Diego Building Trades The National Labor Relations Board has already determined that an employer's supervisors are not protected by the Labor Management Relations Act. Thus, in this case, [Davis] has no remedy before the NLRB, and this dispute, although somewhat laborrelated, is, at most, only of `peripheral concern' to the NLRB. See, e. g.," at -1217, n. 2 The Alabama Supreme Court accordingly affirmed the judgment against the Union. The Union appealed to this Court; Davis moved to dismiss the appeal on the ground that the decision below rested on an adequate and independent state ground because the Alabama Supreme Court's decision was based on an application of a state procedural rule. The ILA's submission, however, raised a substantial question whether reliance on the procedural rule rested on an erroneous view of the scope of pre-emption, a matter of *387 federal law, and hence whether the procedural ground relied on was adequate and independent. We noted probable jurisdiction,[8] II A Given the reliance of the Alabama Supreme Court on its procedural rule governing the presentation of affirmative defenses, we first decide whether that rule in this case represents an independent and adequate state ground supporting the judgment below. If it does, our review is at an end, for we have no authority to review state determinations of purely state law. Nor do we review federal issues that can have no effect on the state court's judgment. See, e. g., ; ; Fox Film The inquiry into the sufficiency of the asserted state ground, however, is one that we undertake ourselves. See ; Abie State In concluding that the Union's pre-emption claim was procedurally barred, the Alabama Supreme Court first held that because the Mobile County Circuit Court, as a state court of general jurisdiction, had subject-matter jurisdiction over the simple tort claim of misrepresentation, there could be no pre-emption of that court's actual jurisdiction. Only the exercise of that jurisdiction could be pre-empted. This explanation has a certain logic to it; but the point is not whether state law gives the state courts jurisdiction over particular controversies but whether jurisdiction provided by *388 state law is itself pre-empted by federal law vesting exclusive jurisdiction over that controversy in another body. It is clearly within Congress' powers to establish an exclusive federal forum to adjudicate issues of federal law in a particular area that Congress has the authority to regulate under the Constitution. See, e. g., Whether it has done so in a specific case is the question that must be answered when a party claims that a state court's jurisdiction is pre-empted. Such a determination of congressional intent and of the boundaries and character of a pre-empting congressional enactment is one of federal law. Pre-emption, the practical manifestation of the Supremacy Clause, is always a federal question. If the Alabama procedural ruling under state law implicates an underlying question of federal law, however, the state law is not an independent and adequate state ground supporting the judgment: "[W]hen resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded. In such a case, the federal-law holding is integral to the state court's disposition of the matter, and our ruling on the issue is in no respect advisory." ). To determine the sufficiency of the state procedural ground relied upon by the Alabama Supreme Court we must ascertain whether that court correctly resolved the antecedent federal question regarding the nature of pre-emption under the NLRA. Specifically, the question is whether pre-emption is a waivable affirmative defense such that a state court may adjudicate an otherwise pre-empted claim if the defense is not timely raised *389 or whether pre-emption is a nonwaivable foreclosure of the state court's very jurisdiction to adjudicate. B The Court's opinion in articulated what has come to be the accepted basis for the broadly pre-emptive scope of the NLRA: "Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law." Building on this cornerstone, the Court went on to set out the now well-established scope of NLRA pre-emption. Given the NLRA's "complex and interrelated federal scheme of law, remedy, and administration," the Court held that "due regard for the federal enactment requires that state jurisdiction must yield," when the activities sought to be regulated by a State are clearly or may fairly be assumed to be within the purview of 7 or 8. The Court acknowledged that "[a]t times it has not been clear whether the particular activity regulated by the States was governed by 7 or 8 or was, perhaps, outside both these sections." Even in such ambiguous *390 situations, however, the Court concluded that "courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board." -245. Thus, the Court held that "[w]hen an activity is arguably subject to 7 or 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." In Construction we considered the application of these principles to a situation in which the Georgia courts had awarded relief based on a complaint that contained allegations that made out "at least an arguable violation of 8(b)." There, we reviewed a claim that "the subject matter of [the] suit was within the exclusive jurisdiction of the National Labor Relations Board," and held that, even though the state court was authorized to adjudicate the claim as a matter of state law, the state court "clearly exceeded its power" in awarding relief on the complaint. Specifically, "the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board." -547. That our conclusion was in fact jurisdictional was accentuated by our discussion of the procedural context in which the case arose. The state court had awarded a temporary injunction only, and a permanent order had not yet been issued. We rejected, however, the argument that the judgment was not yet final for purposes of our own jurisdiction: "[W]e believe our power to review this case rests upon solid ground. The federal question raised by petitioner in the Georgia court, and here, is whether the Georgia courts had power to proceed with and determine this controversy. The issue ripe for review is not whether a *391 Georgia court has erroneously decided a matter of federal law in a case admittedly within its jurisdiction nor is it the question of whether federal or state law governs a case properly before the Georgia courts. What we do have here is a judgment of the Georgia court finally and erroneously asserting its jurisdiction to deal with a controversy which is beyond its power and instead is within the exclusive domain of the National Labor Relations Board." See also Belknap, Curry made clear that when a state proceeding or regulation is claimed to be pre-empted by the NLRA under the issue is a choice-of-forum rather than a choice-of-law question. As such, it is a question whether the State or the Board has jurisdiction over the dispute. If there is pre-emption under then state jurisdiction is extinguished.[9] Since and Curry, we have reiterated many times the general pre-emption standard set forth in and the jurisdictional nature of pre-emption; we have also reaffirmed that our decisions describing the nature of pre-emption and defining its boundaries have rested on a determination that in enacting the NLRA Congress intended for the Board generally to exercise exclusive jurisdiction in this area. See, e. g., ; Iron ; 3 U.S. 301, ; ; ; Motor Coach Employees ; ; Sears, Roebuck & ; Operating 4 U.S. 669, ; Belknap, ; ; Wisconsin Dept. of Industry, Labor and Human 4 U.S. 282, Davis does not seriously dispute this conclusion — at least as a general matter. He concedes, in fact, that "when a particular issue has been placed by Congress within the primary and exclusive jurisdiction of the NLRB, a state court will have no subject matter jurisdiction to adjudicate the issue. In such cases, any judgment issued by the state court will be void ab initio because subject matter jurisdiction is pre-empted." Brief for Appellee 13. Davis notes, however, that this Court has acknowledged that does not pre-empt "all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States." Lockridge, Specifically, Davis points to 's own recognition that some controversies that are arguably subject to 7 or 8 are not pre-empted: "[D]ue regard for the presuppositions of our embracing federal system has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." -244 Both before and since we have identified claims that fall within one or both these articulated exceptions. See, e. g., Belknap, *393 Automobile v. Russell, ; ; ; Construction v. Laburnum Construction Corp.,[10] But these cases serve only as more precise demarcations of the scope of pre-emption. They have not redefined the nature of that pre-emption in any way. A claim of pre-emption is a claim that the state court has no power to adjudicate the subject matter of the case, and when a claim of pre-emption is raised, it must be considered and resolved by the state court. Consequently, the state procedural rule relied on by the Alabama Supreme Court to support the judgment below was not a sufficient state ground, and the Union was and is entitled to an adjudication of its pre-emption claim on the merits.[11] *394 III As the line of cases directs, the pre-emption inquiry is whether the conduct at issue was arguably protected or prohibited by the NLRA. That much is clear. There is also no dispute that if Davis was a supervisor, he was legally fired,[12] the Union misspoke if it represented that there was legal redress for the discharge, and there is no pre-emption. But if Davis was an employee, his discharge for union activities was an unfair practice, the Union was protected in its attempt to interest him in the Union, and it did not err in representing that if he was discharged for joining the Union, there would be a remedy. We should inquire, then, whether Davis was arguably an employee, rather than a supervisor. If he was, the issue was to be initially decided by the NLRB, not the state courts. The precondition for pre-emption, that the conduct be "arguably" protected or prohibited, is not without substance. It is not satisfied by a conclusory assertion of pre-emption and would therefore not be satisfied in this case by a claim, *395 without more, that Davis was an employee rather than a supervisor. If the word "arguably" is to mean anything, it must mean that the party claiming pre-emption is required to demonstrate that his case is one that the Board could legally decide in his favor. That is, a party asserting pre-emption must advance an interpretation of the Act that is not plainly contrary to its language and that has not been "authoritatively rejected" by the courts or the Board. Marine The party must then put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation. In this case, therefore, because the pre-emption issue turns on Davis' status, the Union's claim of pre-emption must be supported by a showing sufficient to permit the Board to find that Davis was an employee, not a supervisor. Our examination of the record leads us to conclude that the Union has not carried its burden in this case. Expecting that the Union would put its best foot forward in this Court, we look first at its submission here that there is an arguable case for pre-emption. The Union's brief states that its conduct was protected by federal law if Davis was an employee, that in order to find the Union liable the jury must have found that Davis was a supervisor, and that "the state law controversy of whether the Union made a misrepresentation and the federal controversy of whether the superintendents were in fact supervisors are `the same in a fundamental respect.' " Brief for Appellant 16 (quoting Operating 4 U. S., at 682). So far, the argument proceeds in the right direction. As for the critical issue of whether Davis is an employee or a supervisor, the Union asserts only that "[a]bsent a clear determination by the NLRB that the ship superintendents are supervisors rather than employees, superintendents are arguably employees and the state is preempted from applying its law." Brief for Appellant 13. In making this contention, the ILA *396 relies on our cases indicating that pre-emption can be avoided if an individual's supervisory status has been determined " `with unclouded legal significance.' " Hanna Mining See also It does not undertake any examination of Davis' duties as a ship superintendent. It makes no attempt to show that Davis was more like an employee than a supervisor as those terms are defined in 2(1) and (11) of the Act, 29 U.S. C. 152(1) and (11).[13] It points to no evidence in the record indicating that Davis was not a supervisor. It does not argue that Davis' job was different from Trione's or that the Regional Director was wrong in finding that Trione was a supervisor. Its sole submission is that Davis was arguably an employee because the Board has not decided that he was a supervisor. We cannot agree that Davis' arguable status as a supervisor is made out by the mere fact that the Board has not finally determined his status. The lack of a Board decision in no way suggests how it would or could decide the case if it had the opportunity to do so. To accept the Union's submission would be essentially equivalent to allowing a conclusory claim of pre-emption and would effectively eliminate the necessity to make out an arguable case. The better view is that those claiming pre-emption must carry the burden of showing at least an arguable case before the jurisdiction of a state court will be ousted. Moreover, neither nor Hanna Mining supports the Union's position. itself is the source of the arguably protected or prohibited standard for pre-emption. The Court 359 U.S., : "When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by *397 7 of the National Labor Relations Act, or constitute an unfair labor practice under 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of the federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law." Later the Court said: "When an activity is arguably subject to 7 or 8 of the Act, the States as well as the federal courts must defer to the exclusive competence" of the Board. Of course, the Court explained, the Board might decide the case one way or the other, but in the "absence of the Board's clear determination that an activity is neither protected or prohibited," it is not for the courts to decide the case. It is apparent from these passages that a court first must decide whether there is an arguable case for pre-emption; if there is, it must defer to the Board, and only if the Board decides that the conduct is not protected or prohibited may the court entertain the litigation. Nothing in suggests that an arguable case for pre-emption is made out simply because the Board has not decided the general issue one way or the other. Hanna Mining also does nothing for the Union's submission. The Court there, relying on held that there was no pre-emption because the Board or its General Counsel had in fact adversely decided the issues on which the claim of pre-emption rested. Obviously, no inference may be drawn from that decision that a party makes out a case for pre-emption by merely asserting that the issue involved has not been decided by the Board. The Union's position is also negated by Interlake S. S. Co., where the Court found pre-emption only after examining the facts and deciding "whether the evidence in this case was sufficient to show that either of [the organizations] was arguably a `labor organization' within the contemplation of 8(b)." The Court went on to hold that while there was persuasive evidence *398 that the marine engineers were supervisors, the Board had nevertheless effectively decided that the union involved was a labor organization within the meaning of the Act. While agreeing with the principles announced by the Court, Justice Douglas dissented because he had a different view of the facts of the case. Consequently, a party asserting pre-emption must put forth enough evidence to enable a court to conclude that the activity is arguably subject to the Act. Here, the Union points to no evidence in support of its assertion that Davis was arguably an employee. The Union's claim of pre-emption in the state courts was also devoid of any factual or legal showing that Davis was arguably not a supervisor but an employee. In this respect, its brief in the Alabama Supreme Court was similar to its brief here, and its post-trial motion for judgment in the trial court contained no more than a conclusory assertion that state jurisdiction was pre-empted. Until that motion, no claim of pre-emption had been made out, but whether Davis was a supervisor or an employee was a relevant inquiry in making out his case. He alleged in his complaint that he was a supervisor. The Union answered that it was without sufficient information to form a belief as to whether or not he was. Moreover, in moving for summary judgment or for directed verdict at the close of Davis' case and at the close of all the evidence the Union did not assert that Davis was an employee, not a supervisor, let alone point to any evidence to support such a claim.[14] In sum, the Union has not met its burden of showing that the conduct here was arguably subject to the Act. IV We hold that where state law is pre-empted by the NLRA under and our subsequent cases, the state courts lack the very power to adjudicate the claims that trigger pre-emption. *399 Thus, the Alabama Supreme Court's holding that the ILA had waived its pre-emption claim by noncompliance with state procedural rules governing affirmative defenses did not present an independent and adequate state ground supporting the judgment below, and that court erred in declining to address that claim on the merits. On the merits, we reject the ILA's characterization of our prior cases as holding that the mere lack of a conclusive determination by the Board that an activity is without the purview of the Act renders that activity arguably subject to the Act. Rather, we reaffirm our previously expressed view that the party asserting pre-emption must make an affirmative showing that the activity is arguably subject to the Act and we therefore affirm the judgment of the Alabama Supreme Court. So ordered. JUSTICE REHNQUIST, with whom JUSTICE POWELL, JUSTICE STEVENS, and JUSTICE O'CONNOR join, concurring in part and concurring in the judgment.

Justice White

majority

Malone v. White Motor Corp.

https://www.courtlistener.com/opinion/109826/malone-v-white-motor-corp/

https://www.courtlistener.com/api/rest/v3/clusters/109826/

1977-062

A Minnesota statute, the Private Pension Benefits Protection Act, Minn. Stat. § 181B.01 et seq. (1976) (Pension Act), passed in April 1974, established minimum standards for the funding and vesting of employee pensions. The question in this case is whether this statute, which since January 1, 1975, has been pre-empted by the federal Employee Retirement Income Security Act of 1974 (ERISA),[1] was pre-empted prior to that time by federal labor policy insofar as it purported to override or control the terms of collective-bargaining agreements negotiated under the National Labor Relations Act (NLRA). A Federal District Court held that it was not, 412 F. Supp. 372 (Minn. 1976), but the Court of Appeals for the Eighth Circuit disagreed and held the Pension Act invalid. 545 F.2d 599 (1976). Because the case fell within our mandatory appellate jurisdiction pursuant to 28 U.S. C. § 1254 (2), we noted probable jurisdiction. 434 U.S. 813. We reverse. I In 1963, White Motor Corp. and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), *500 purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn. (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining. Under the 1971 collective-bargaining contract, the Pension Plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 Plan provided that "[p]ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund." App. 155.[2] The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability— the excess of accrued liability over the present value of the assets of the Fund—was to be met through contributions by the employer from its continuing operations.[3] *501 Section 10.02 of the Plan provided that "[t]he Company shall have the sole right at any time to terminate the entire plan." During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan.[4] By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund. Appellee exercised its contractual right to terminate the Pension Plan on May 1, 1974.[5] A few weeks before, however, the Pension Act had been enacted. This statute imposed "a pension funding charge" directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had "vested" within the terms of *502 the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years' service full payment of their accrued pension benefits. Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Pension Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court. Appellee's complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA,[6] as amended, 29 U.S. C. § 151 et seq., because it "interferes with the right of Plaintiffs to free collective bargaining under federal law and . . . vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume." App. A-9—A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the pre-emption claim. Distinguishing Teamsters v. Oliver, 358 U.S. 283 (1959), and relying on evidence of congressional intent contained in *503 the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), 72 Stat. 997, as amended, 76 Stat. 35, 29 U.S. C. § 301 et seq., the District Court held that the Pension Act was not pre-empted by federal law. 412 F. Supp. 372 (Minn. 1976). On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was pre-empted by federal labor law, and reversed the District Court. 545 F.2d 599 (1976). The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: It granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for post-termination payments to the pension fund beyond those specifically guaranteed. This, the court ruled, the State could not do; for if, under Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976), "states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining." 545 F.2d, at 606. Further, as the court understood the opinion in Oliver, supra, "a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement." 545 F.2d, at 608. Finally, the Court of Appeals found that the pre-emption disclaimer in the Disclosure Act relied on by the District Court related only "to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements." Id., at 609. *504 II It is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. "The purpose of Congress is the ultimate touchstone." Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). Often Congress does not clearly state in its legislation whether it intends to pre-empt state laws; and in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante, at 157-158; Jones v. Rath Packing Co., 430 U.S. 519, 525, 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). "We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States." Motor Coach Employees v. Lockridge, 403 U.S. 274, 289 (1971). The Pension Act "leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible." Garner v. Teamsters, 346 U.S. 485, 488 (1953). Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective-bargaining process. There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension *505 plans, that may be the subject of collective bargaining. If the Pension Act is pre-empted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should not be made here and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plans is to be found in § 10 of the Disclosure Act. Section 10 (b) provided: "The provisions of this Act, except subsection (a) of this section and section 13 and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law." Also, § 10 (a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected: "Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan." Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here.[7] *506 Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that "Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries."[8] In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded: "The most serious single weakness in this private social insurance complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them." S. Rep. No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S. Rep.). As a first step toward protection of the workers' interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor *507 Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia, "the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan . . . ," as well as a valuation of the assets of the fund. The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained: "[T]he legislation proposed is not a regulatory statute. It is a disclosure statute and by design endeavors to leave regulatory responsibility to the States." S. Rep. 18. This objective was reflected in §§ 10 (a) and 10 (b), quoted above. As the Senate Report explained, the statute was designed "to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations." S. Rep. 19. There was "no desire to get the Federal Government involved in the regulation of these plans but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions." Id., at 18. There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers "covered by collective bargaining agreements." The problems that Congress had identified were characteristic of bargained-for plans as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established *508 through the collective-bargaining process. S. Rep. 8; H. R. Rep. No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H. R. Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collective-bargaining agreement. S. Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans "whether or not they have been brought into existence through collective bargaining." 104 Cong. Rec. 16420 (1958) (remarks of Cong. Lane); id., at 16425 (remarks of Cong. Wolverton); see id., at 7049-7052 (remarks of Sen. Kennedy). Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would "require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining." S. Rep. 34 (minority view of Sen. Allott); accord, H. R. Rep. 25 (minority views).[9] Yet neither the bill as enacted nor its *509 legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States. Appellee argues that the Disclosure Act's allocation of regulatory responsibility to the States is irrelevant here because the Disclosure Act was "enacted to deal with corruption and mismanagement of funds." Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age. The Senate Report specifically stated: "Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans." S. Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. Ibid. The Senate Committee also observed: "Trusteed pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust." Id., at 15. As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. *510 Ibid.[10] The Senate Report also showed an awareness of the problems posed by vesting requirements[11] and expressed concern that "employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination." Id., at 8. Thus, Congress was concerned with many of the same issues as are involved in this case—unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws "affecting the operation or administration of employee welfare or pension benefit plans," 72 Stat. 1003, Congress indicated that the States had and were to have authority to deal with these problems. Moreover, it should be emphasized that § 10 of the Disclosure Act referred specifically to the "future," as well as *511 "present" laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans.[12] The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought "to provide adequate information in disclosure legislation for possible later State . . . regulatory laws." H. R. Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues: "The objective of the bill is to provide more adequate protection for the employee-beneficiaries of these plans through a uniform Federal disclosure act which will . . . make the facts available not only to the participants and the Federal Government but to the States, in order that any desired State regulation can be more effectively accomplished." 104 Cong. Rec. 7050 (1958). See also S. Rep. 18. Senator Kennedy had "no doubt that this [was] an area in which the States [were] going to begin to move." 104 Cong. Rec. 7053 (1958). The aim of the Disclosure Act was perhaps best summarized by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated: "It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee-beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and *512 prospective income of the programs are sufficient to guarantee the benefits which have been promised to them. "This present bill provides for far more than anticorruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. . . . "This policy could very well lead to the establishment of mandatory standards by which these plans must be governed." Id., at 7517. It is also clear that Congress contemplated that the primary responsibility for developing such "mandatory standards" would lie with the States. Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly pre-empted by the collective-bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned. Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that the assets and prospective income of the plan are sufficient to guarantee the benefits promised—exactly the kind of problems which the 85th Congress hoped that the States would solve. This conclusion is consistent with the Court's decision in Teamsters v. Oliver, 358 U.S. 283 (1959), which concerned a claimed conflict between a state antitrust law and the terms of a collective-bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental *513 for the use of their vehicles. An Ohio court had invalidated this portion of the collective-bargaining agreement under Ohio antitrust law. This Court reversed, noting that "[t]he application [of the Ohio law] would frustrate the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here." Id., at 296. The Oliver opinion contains broad language affirming the independence of the collective-bargaining process from state interference: "Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty . . . and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide . . . . We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties' agreement can provide to the problems of wages and working conditions." Ibid. (citations omitted). The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result: "The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 307-312." Ibid.[13] *514 As we understand the 1958 Disclosure Act and its legislative history, the collective-bargaining provisions at issue here dealt with precisely the sort of subject matter "which Congress . . . indicated may be left to [regulation] by the several states." Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from Oliver in sustaining the Minnesota statute. III Insofar as the Supremacy Clause issue is concerned, no different conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp. agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective-bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee's argument, they are not material to the resolution of the pre-emption issue since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted.[14] Our decision in this case is, of course, limited to appellee's claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee's other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due *515 process in violation of the United States Constitution. Without intimating any views on the merits of those questions,[15] we note that appellee's claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal preemption of the Minnesota Pension Act should be and hereby is Reversed. MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR.

A Minnesota statute, the Private Pension Benefits Protection Act, Minn. Stat. 181B.01 et seq. (Pension Act), passed in April 1974, established minimum standards for the funding and vesting of employee pensions. The question in this case is whether this statute, which since January 1, 1975, has been pre-empted by the federal Employee Retirement Income Security Act of 1974 (ERISA),[1] was pre-empted prior to that time by federal labor policy insofar as it purported to override or control the terms of collective-bargaining agreements negotiated under the National Labor Relations Act (NLRA). A Federal District Court held that it was not, but the Court of Appeals for the Eighth Circuit disagreed and held the Pension Act invalid. Because the case fell within our mandatory appellate jurisdiction pursuant to 28 U.S. C. 1254 (2), we noted probable jurisdiction. We reverse. I In 1963, White Motor Corp. and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), *500 purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn. (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining. Under the 1971 collective-bargaining contract, the Pension Plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 Plan provided that "[p]ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund." App. 155.[2] The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability— the excess of accrued liability over the present value of the assets of the Fund—was to be met through contributions by the employer from its continuing operations.[3] *501 Section 10.02 of the Plan provided that "[t]he Company shall have the sole right at any time to terminate the entire plan." During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan.[4] By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund. Appellee exercised its contractual right to terminate the Pension Plan on May 1, 1974.[5] A few weeks before, however, the Pension Act had been enacted. This statute imposed "a pension funding charge" directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had "vested" within the terms of *502 the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years' service full payment of their accrued pension benefits. Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Pension Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court. Appellee's complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA,[6] as amended, 29 U.S. C. 151 et seq., because it "interferes with the right of Plaintiffs to free collective bargaining under federal law and vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume." App. A-9—A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the pre-emption claim. Distinguishing and relying on evidence of congressional intent contained in *503 the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), as amended, 29 U.S. C. 301 et seq., the District Court held that the Pension Act was not pre-empted by federal law. On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was pre-empted by federal labor law, and reversed the District Court. The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: It granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for post-termination payments to the pension fund beyond those specifically guaranteed. This, the court ruled, the State could not do; for if, under "states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining." Further, as the court understood the opinion in "a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement." Finally, the Court of Appeals found that the pre-emption disclaimer in the Disclosure Act relied on by the District Court related only "to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements." *504 II It is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. "The purpose of Congress is the ultimate touchstone." Retail Often Congress does not clearly state in its legislation whether it intends to pre-empt state laws; and in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante, 7-158; ; "We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States." Motor Coach The Pension Act "leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible." Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective-bargaining process. There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension *505 plans, that may be the subject of collective bargaining. If the Pension Act is pre-empted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should not be made here and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plans is to be found in 10 of the Disclosure Act. Section 10 (b) provided: "The provisions of this Act, except subsection (a) of this section and section 13 and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law." Also, 10 (a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected: "Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan." Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here.[7] *506 Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that "Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries."[8] In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded: "The most serious single weakness in this private social insurance complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them." S. Rep. No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S. Rep.). As a first step toward protection of the workers' interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor *507 Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia, "the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan" as well as a valuation of the assets of the fund. The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained: "[T]he legislation proposed is not a regulatory statute. It is a disclosure statute and by design endeavors to leave regulatory responsibility to the States." S. Rep. 18. This objective was reflected in 10 (a) and 10 (b), quoted above. As the Senate Report explained, the statute was designed "to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations." S. Rep. 19. There was "no desire to get the Federal Government involved in the regulation of these plans but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions." There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers "covered by collective bargaining agreements." The problems that Congress had identified were characteristic of bargained-for plans as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established *508 through the collective-bargaining process. S. Rep. 8; H. R. Rep. No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H. R. Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collective-bargaining agreement. S. Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans "whether or not they have been brought into existence through collective bargaining." 104 Cong. Rec. 16420 (1958) (remarks of Cong. Lane); ; see Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would "require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining." S. Rep. 34 (minority view of Sen. Allott); accord, H. R. Rep. 25 (minority views).[9] Yet neither the bill as enacted nor its *509 legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States. Appellee argues that the Disclosure Act's allocation of regulatory responsibility to the States is irrelevant here because the Disclosure Act was "enacted to deal with corruption and mismanagement of funds." Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age. The Senate Report specifically stated: "Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans." S. Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. The Senate Committee also observed: "Trusteed pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust." As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. *510 [10] The Senate Report also showed an awareness of the problems posed by vesting requirements[11] and expressed concern that "employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination." Thus, Congress was concerned with many of the same issues as are involved in this case—unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws "affecting the operation or administration of employee welfare or pension benefit plans," Congress indicated that the States had and were to have authority to deal with these problems. Moreover, it should be emphasized that 10 of the Disclosure Act referred specifically to the "future," as well as *511 "present" laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans.[12] The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought "to provide adequate information in disclosure legislation for possible later State regulatory laws." H. R. Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues: "The objective of the bill is to provide more adequate protection for the employee-beneficiaries of these plans through a uniform Federal disclosure act which will make the facts available not only to the participants and the Federal Government but to the States, in order that any desired State regulation can be more effectively accomplished." 104 Cong. Rec. 7050 (1958). See also S. Rep. 18. Senator Kennedy had "no doubt that this [was] an area in which the States [were] going to begin to move." 104 Cong. Rec. 7053 (1958). The aim of the Disclosure Act was perhaps best summarized by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated: "It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee-beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and *512 prospective income of the programs are sufficient to guarantee the benefits which have been promised to them. "This present bill provides for far more than anticorruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. "This policy could very well lead to the establishment of mandatory standards by which these plans must be governed." It is also clear that Congress contemplated that the primary responsibility for developing such "mandatory standards" would lie with the States. Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly pre-empted by the collective-bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned. Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that the assets and prospective income of the plan are sufficient to guarantee the benefits promised—exactly the kind of problems which the 85th Congress hoped that the States would solve. This conclusion is consistent with the Court's decision in which concerned a claimed conflict between a state antitrust law and the terms of a collective-bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental *513 for the use of their vehicles. An Ohio court had invalidated this portion of the collective-bargaining agreement under Ohio antitrust law. This Court reversed, noting that "[t]he application [of the Ohio law] would frustrate the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here." The opinion contains broad language affirming the independence of the collective-bargaining process from state interference: "Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties' agreement can provide to the problems of wages and working conditions." The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result: "The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer" [13] *514 As we understand the 1958 Disclosure Act and its legislative history, the collective-bargaining provisions at issue here dealt with precisely the sort of subject matter "which Congress indicated may be left to [regulation] by the several states." Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from in sustaining the Minnesota statute. III Insofar as the Supremacy Clause issue is concerned, no different conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp. agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective-bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee's argument, they are not material to the resolution of the pre-emption issue since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted.[14] Our decision in this case is, of course, limited to appellee's claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee's other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due *515 process in violation of the United States Constitution. Without intimating any views on the merits of those questions,[15] we note that appellee's claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal preemption of the Minnesota Pension Act should be and hereby is Reversed. MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR.

Justice Blackmun

majority

Southern Pacific Transp. Co. v. Commercial Metals Co.

https://www.courtlistener.com/opinion/110700/southern-pacific-transp-co-v-commercial-metals-co/

https://www.courtlistener.com/api/rest/v3/clusters/110700/

1981-084

This case presents the question whether a common carrier's violation of credit regulations issued by the Interstate Commerce Commission (ICC) bars the carrier's collection of a lawful freight charge from a shipper-consignor who, under the terms of the shipment's bill of lading, is primarily liable for the charge. I Petitioner Southern Pacific Transportation Company (SP) is a common carrier by rail. Respondent Commercial Metals Company (Metals), a Delaware corporation with principal *338 place of business in Dallas, Tex., is in the business of buying and selling steel goods. Petitioner instituted this action against respondent in the United States District Court for the Northern District of Texas to recover freight charges for three cars of steel cobble shipped by rail in 1974 from Detroit, Mich., to Alhambra, Cal. Each of the three shipments was consigned by Metals to Penn Central Transportation Company, as initial carrier,[1] under the uniform straight bill of lading prescribed by the ICC. Each bill of lading included a "nonrecourse" clause that the consignor might sign. That clause reads: "Subject to Section 7 of Conditions, if the shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement: The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges."[2] In each instance, respondent Metals, as consignor, failed to execute this nonrecourse clause. Metals, however, already had received payment for the goods prior to shipment. Tr. of Oral Arg. 5, 6, 24-25; Brief for Respondent 21. *339 The first of the three cars was tendered to Penn Central at Detroit on April 11, 1974, for transportation to Carco Steel Corporation (Carco), as consignee, in Alhambra. SP released the car to Carco on April 25 without collecting the freight charge in advance of delivery. On the same day, however, SP mailed to Carco a bill for $4,634.11, the correct amount of the charge. Carco was not a credit patron of SP and had never applied to SP for credit. SP never before had made a delivery to Carco. Nevertheless, the carrier made no investigation of Carco's credit standing. The second and third shipments took place on May 2, 1974, when Metals consigned two other cars of cobble to Penn Central for transportation to Carco. SP delivered the cars to Carco on May 16. This time, SP released the cars only after receiving checks from Carco in the respective amounts of $5,761.79 and $2,383.67 for the freight charges. The larger amount was correct, but the smaller check should have been for $3,283.66 and thus was $900 short.[3] On May 20, SP issued freight bills in the correct amounts to Carco. The two checks were dishonored by Carco's bank for insufficient funds. In August 1974, after efforts to collect the unpaid freight charges from Carco had proved fruitless, SP filed suit against Carco in a California state court. Attempts to serve the summons and complaint were unsuccessful. On December 17, 1976, more than 30 months after the shipments, SP notified Metals of Carco's failure to pay the freight charges. SP requested that Metals, as the consignor who had failed to execute the nonrecourse provision in the bills of lading, pay the $13,679.56 total charges in satisfaction of its primary liability for the three shipments. This was the first notice to Metals that the freight charges had not been collected *340 from Carco. When payment was not forthcoming, SP instituted the present action against Metals in federal court. On this record, stipulated by the parties, the District Court ruled that SP had established a prima facie case for the recovery of the freight charges from Metals. It found the charges correct and in accord with applicable tariffs and that no part of those charges had been paid. App. 22. "Absent a showing of valid and affirmative defenses," then, Metals was liable to the carrier. Id., at 23. The court rejected Metals' claim that the passage of time barred SP's recovery; although Metals lacked notice until December 1976 that the charges for the 1974 shipments had not been paid, the court noted that the applicable period of limitation was three years and that the carrier had been making efforts to locate Carco and to receive payment. The District Court, however, went on to hold that Metals had established a valid equitable defense to SP's collection of the charges by showing that SP had failed to comply with the ICC's credit regulations promulgated pursuant to § 3(2) of the Interstate Commerce Act, 49 U.S. C. § 3(2).[4] App. 23. See 49 CFR pt. 1320 (1981). The court was not persuaded by SP's suggestion that Metals had failed to avail itself of its contractual opportunity for exoneration afforded by the nonrecourse provision in the bills of lading. The court concluded: "The loss sustained by [SP] was due entirely to its own fault and negligence by failing to take the proper credit precautions when it delivered the goods to Carco. . . . I think that it is fundamentally unfair and inequitable for the defendant in this case to pay for the gross negligence of the plaintiff." App. 24. Accordingly, judgment was entered for Metals. Id., at 26. *341 The United States Court of Appeals for the Fifth Circuit affirmed that judgment. 641 F.2d 235 (1981). Like the District Court, the Court of Appeals acknowledged that in the absence of a valid defense, Metals must be held liable to SP for the freight charges. Id., at 236. The court felt, however, that § 3(2) of the Act, the payment-before-delivery provision, provided a barrier to the carrier's collection of the charges from the consignor.[5] The implementing regulation,[6] which modified the statutory mandate by allowing for delivery of freight on credit for up to five days, nevertheless was "quite strict." Ibid. Thus, Metals could assert as a defense the carrier's extension of credit to Carco without adequate precautions for a period in excess of that provided by the regulation. The court concluded: "Under these circumstances, we are compelled to hold that the carrier's failure to comply with the applicable ICC regulations is a defense, available to [Metals], in an action by [SP] for unpaid freight charges." Id., at 239. *342 Because of a conflict in the decided cases,[7] we granted certiorari. 454 U.S. 1052 (1981). II Since 1919, the ICC has prescribed a uniform bill of lading for use on all interstate domestic shipments of freight by rail. See In re Bills of Lading, 52 I. C. C. 671 (1919), modified, 64 I. C. C. 357 (1921), further modified, 66 I. C. C. 63 (1922).[8] The bill of lading is the basic transportation contract between the shipper-consignor and the carrier; its terms and conditions bind the shipper and all connecting carriers. Texas & Pacific R. Co. v. Leatherwood, 250 U.S. 478, 481 (1919). *343 "Each [term] has in effect the force of a statute, of which all affected must take notice." Ibid. Unless the bill provides to the contrary, the consignor remains primarily liable for the freight charges. When the ICC first promulgated the uniform bill of lading, it stated: "The consignor, being the one with whom the contract of transportation is made, is originally liable for the carrier's charges and unless he is specifically exempted by the provisions of the bill of lading, or unless the goods are received and transported under such circumstances as to clearly indicate an exemption for him, the carrier is entitled to look to the consignor for his charges." In re Bills of Lading, 52 I. C. C., at 721. This rule has not changed over time. Recently, the ICC again observed that the consignor's liability "is governed by the bill of lading contract between the parties and must be decided by interpreting that contract." C-G-F Grain Co. v. Atchison, T. & S. F. R. Co., 351 I. C. C. 710, 712 (1976). Clearly, then, under the contract between Metals as consignor and SP as the carrier, the consignor was primarily liable for the freight charges in question. Just as clearly, however, Metals was in a position to effectuate its release from liability by executing the nonrecourse clause in the bill of lading. Signing that clause would have operated to excuse Metals from liability. By failing to execute the nonrecourse provision, Metals continued to be primarily liable for those charges. Illinois Steel Co. v. Baltimore & O. R. Co., 320 U.S. 508, 513 (1944); New York, N. H. & H. R. Co. v. California Fruit Growers Exchange, 125 Conn. 241, 254-255, 5 A.2d 353, 359, cert. denied, 308 U.S. 567 (1939). See also Louisville & Nashville R. Co. v. Central Iron Co., 265 U.S. 59, 65-67 (1924). It is perhaps appropriate to note that a carrier has not only the right but also the duty to recover its proper charges for services performed. Id., at 65-66, and n. 3. See Pittsburgh, *344 C., C. & St. L. R. Co. v. Fink, 250 U.S. 577, 581-583 (1919). This rule of strict adherence to statutory standards is in line with the historic purpose of the Interstate Commerce Act — to achieve uniformity in freight transportation charges, and thereby to eliminate the discrimination and favoritism that had plagued the railroad industry in the late 19th century. Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 361 (1943); New York, N. H. & H. R. Co. v. ICC, 200 U.S. 361, 391 (1906). Both the District Court and the Court of Appeals correctly found that SP had established a prima facie case of Metals' liability for the freight charges in question by proving that Metals had failed to sign the nonrecourse clause. This much, indeed, is conceded by Metals. Brief for Respondent 11; Tr. of Oral Arg. 31. III SP concedes that its failure to collect all freight charges from Carco before releasing the shipments violated the ICC regulation with regard to at least the first of the three shipments. Id., at 4, 17. See 49 CFR § 1320.1 (1981), quoted in n. 6, supra. The question, then, is whether the Court of Appeals properly found that SP's violation of the regulation provided Metals with an equitable affirmative defense to SP's prima facie case.[9] A. The ICC has comprehensively regulated the extension of credit to shippers by rail carriers. See 49 CFR pt. 1320 (1981). Yet neither the statute under which the regulations *345 were promulgated, 49 U.S. C. § 3(2), nor the regulations themselves intimate that a carrier's violation of the credit rules automatically precludes it from collecting the lawful freight charge. Nor does either contain any words of affirmative defense to a freight charge action. Indeed, to the extent the ICC has spoken to this question, it has stated: "[A] violation of section 3(2) by [a carrier], in itself, would have had no effect on [a consignor's] responsibility for payment of undercharges." C-G-F Grain Co. v. Atchison, T. & S. F. R. Co., 351 I. C. C., at 712. Although § 3(2) "prohibits a rail carrier from delivering freight without collecting all charges thereon[,] . . . it contains no provision shielding a consignor from liability for lawful charges." Ibid. Thus, at least in dictum, the ICC has suggested that "[t]he question of [a consignor's] liability [under a bill of lading] does not turn on whether any provision of the act has been violated." Ibid. We view the absence of any provision for an affirmative defense in the ICC's credit regulations as an administrative construction of the statute that aids our determination of congressional intent. "[L]egislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. . . . Accordingly, caution must temper judicial creativity in the face of legislative or regulatory silence." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980). We so regard the administrative silence here. When an administrative agency historically has engaged in comprehensive regulation of an industry's credit practices, the agency's silence regarding an affirmative defense based on a violation of those regulations must be deemed significant. B. The legislative and administrative history of the credit regulations further indicates that this silence was not inadvertent — the intent of the rules was to protect carriers, not to penalize them. Prior to 1918, the Federal Government did not regulate the extension of credit by rail carriers. *346 Wartime regulation revealed, however, that a general requirement of payment before delivery would protect the working capital of carriers and avoid discrimination among credit recipients. Cf. Ex parte No. MC-1, 2 M. C. C. 365, 374 (1937). After the first World War, when Congress returned the railroads to private control, § 405 of the Transportation Act, 1920, 41 Stat. 479, added paragraph (2) to § 3 of the Interstate Commerce Act. See n. 5, supra. The regulations adopted by the ICC in 1920 under the statute as so amended permitted railroads to extend limited credit to shippers on a nondiscriminatory basis. The regulations have remained largely unchanged to the present time. Until 1971, no court seriously suggested that a violation of the credit regulations precluded a carrier from collecting a freight charge from the party with primary liability. Instead, a defense of estoppel based on a violation of the credit regulations was held to be inconsistent with the purpose of the regulations themselves. Courts were concerned that a rule permitting selective estoppels would defeat the antidiscriminatory purpose of the Act and would weaken the capital structure of common carriers. See, e. g., Western Maryland R. Co. v. Cross, 96 W. Va. 666, 673, 123 S.E. 572, 575 (1924); Chicago Junction R. Co. v. Duluth Log Co., 161 Minn. 466, 469, 202 N.W. 24, 25 (1925); East Texas Motor Freight Lines v. Franklin County Distilling Co., 184 S.W.2d 505, 507 (Tex. Civ. App. 1944). Despite the absence of any textual or historical support for an affirmative defense in either the statute or the regulations, the Court of Appeals concluded that Metals could raise SP's failure to comply fully with the regulations as an absolute equitable defense to SP's freight charge action. The Court of Appeals relied primarily on what it regarded as "a closely analogous situation," 641 F.2d at 237, presented in Consolidated Freightways Corp. v. Admiral Corp., 442 F.2d 56 (CA7 1971). On examination, however, that Seventh Circuit case plainly is distinguishable from the present one. *347 The defendant there was a consignee to whom goods had been delivered under bills of lading marked "prepaid." Relying upon the carrier's explicit representation of prepayment, the consignee paid the amount of the freight charges to the shipper-consignor. In fact, however, the carrier had extended credit to the consignor and had failed to collect the charges within the period allowed by the regulations. When the consignor went out of business, the carrier turned to the consignee for payment. The Court of Appeals, by a divided vote, held the carrier estopped. Admiral differs from this case in four crucial respects. First, in Admiral, the carrier not only violated ICC credit regulations but also made to the defendant a material misrepresentation regarding prepayment. The carrier here, in contrast, was charged solely with failure to observe the applicable ICC credit regulations. Second, in the Seventh Circuit case, the consignee-defendant had paid full freight charges to the consignor. Had the Seventh Circuit also awarded relief to the carrier, it would have "require[d] an innocent consignee to defray freight charges exactly double the amount contemplated by the applicable tariffs." 442 F.2d, at 65 (Stevens, J., concurring). Here, the defendant paid no freight charges; thus, an award of relief to the carrier creates no possibility of enforcing a double payment. Third, in Admiral, the grounds for equitable estoppel were created by the consignee's payment of freight charges in detrimental reliance on the carrier's misrepresentation. The carrier's violation of the credit regulations offered only "additional grounds for the intervention of the principles of equity." Id., at 60 (majority opinion). In this case, there is no suggestion that the consignor knew of, or changed its position detrimentally in reliance on, the carrier's credit violation. Fourth, and most significant, the defendant-consignee in the Seventh Circuit case had no means by which to protect itself from freight charge liability. In this case, of course, the defendant-consignor could have protected itself completely *348 simply by signing the nonrecourse clause in the bills of lading. C. Finally, public policy concerns disfavor judicial implication of affirmative defenses based on carrier violations of the Commission's credit regulations. We recognize that the regulations are technical. Thousands of railcars are delivered every day by the country's railroads. See Association of American Railroads, Yearbook of Railroad Facts 25 (1981) (approximately 62,000 deliveries per day). Almost inevitably, some cars will be delivered to noncredit patrons, some freight bills will be sent out late, and some accounts will not be collected within the specified time. A 1966 study by the ICC's Bureau of Enforcement found that almost a third of 15,751 bills examined were overdue and that over half of those overdue were delinquent more than 10 days. See In re Regulations for Payment of Rates and Charges, 326 I. C. C. 483, 485 (1966).[10] After appraising this data, the ICC agreed that "the evidence establishes many and continued violations of the credit regulations. However, we are unable to conclude on this record that rigid rules . . . would provide a practical or desirable solution. [T]here are many reasons for credit violations which are beyond correction by rules, e. g., where shippers have unexpected peak workloads, where there are controversies over amounts due, where additional information is needed such as weights or evaluations, where standard office procedures are in the process of change, where temporary cash flow problems occur, and where it becomes necessary to check the validity of charges with third persons. Stringent credit rules . . . would destroy the flexibility needed to meet problems of this nature." Id., at 489-490. Indeed, in 1980, the ICC proposed repealing the credit regulations altogether, noting that "apparent, widespread *349 noncompliance with the regulations indicates that the payment periods and other time limits prescribed are simply not realistic for many of the situations in which they apply." Ex parte Nos. MC-1, 73, 143, and 170, 45 Fed. Reg. 31766. It thus appears that the Court of Appeals in the present case implied an affirmative defense that would penalize railroads for violations of the credit regulations just as the agency responsible for administering those regulations was pronouncing them unrealistic. The prospect raised for the carrier is that it will be barred from recovering lawful freight charges, even from a consignor who fails to execute the nonrecourse clause, for possibly unavoidable violations of the credit rules. "The obvious consequence would be to discourage [carriers] from extending credit where the operation of this rather difficult statute is in doubt." Bruce's Juices, Inc. v. American Can Co., 330 U.S. 743, 753 (1947). Ironically, those shippers who pay their bills currently in a responsible manner would suffer as a result. Metals argues that a ruling for SP places SP "in the unrealistic position of being incapable of doing any wrong" and therefore creates "no incentive [for carriers] to improve inefficient and careless credit practices." Brief for Respondent 12. Metals further claims that the loss at issue here would not have occurred if SP only had complied with its obligations under the regulations. Id., at 24. The answer to this is that the ICC has ample authority to police the credit practices of carriers and thereby to deter improper practices. This authority includes the power to issue a cease-and-desist order, see Shaw Warehouse Co. v. Southern R. Co., 308 I. C. C. 609, 633-634, 637 (1959), appeal dism'd sub nom. Southern R. Co. v. United States, 186 F. Supp. 29 (ND Ala. 1960); the power to seek a federal-court injunction requiring a carrier to comply with the regulations, see ICC v. All-American, Inc., 505 F.2d 1360 (CA7 1974); and the power to bring suit for the $5,000 civil forfeiture, provided by 49 U.S. C. § 16(8) and 49 U.S. C. § 11901(a) (1976 ed., Supp. *350 III), for each knowing violation of an order of the Commission, see, e. g., United States v. Western Pacific R. Co., 385 F.2d 161 (CA10 1967), cert. denied sub nom. Denver & R. G. W. R. Co. v. United States, 391 U.S. 919 (1968); United States v. Pennsylvania R. Co., 308 F. Supp. 293 (ED Pa. 1969). Thus, the ICC may regulate the credit practices of carriers even without the judicially created remedy of forfeiture of freight charges. Furthermore, a reading of the cited cases reveals that the question whether a credit violation has occurred often will require the ICC or the courts to conduct a factual inquiry as to the carrier's intent to violate the regulations. The "credit violation defense" adopted by the Court of Appeals requires a carrier to forfeit freight charges without regard to the nature of its violation.[11] This inflexible approach *351 disenables courts from considering the carrier's intent, the degree of the shipper's fault, the effect of enforcement on the carrier's existing permissible credit practices, and other subjective factors in deciding whether or not to enforce a shipper's primary liability for freight charges. Metals also advances a number of "double payment" cases in support of its claim for an affirmative defense. See, e. g., Southern Pacific Transp. Co. v. Campbell Soup Co., 455 F.2d 1219 (CA8 1972); Consolidated Freightways Corp. v. Admiral Corp., 442 F.2d 56 (CA7 1971); Farrell Lines, Inc. v. Titan Industrial Corp., 306 F. Supp. 1348 (SDNY), aff'd, 419 F.2d 835 (CA2 1969), cert. denied, 397 U.S. 1042 (1970); Southern Pacific Co. v. Valley Frosted Foods Co., 178 Pa. Super. 217, 116 A.2d 70 (1955). To be sure, these cases speak in equity terms. But none of these cases turned solely on a carrier's violation of credit regulations. Each and all of them involved a carrier's misrepresentation, such as a false assertion of prepayment on the bill of lading, upon which a consignee detrimentally relied only to find itself later sued by the carrier for the same freight charges. We find that these double payment cases constitute their own category and stand against the placement of duplication of liability upon an innocent party. See Consolidated Freightways Corp. v. Admiral Corp., 442 F. 2d, at 65 (Stevens, J., concurring). As we have noted above, no similar double payment liability is in prospect here. Metals, not the carrier, selected the consignee. Furthermore, Metals has been paid for its goods while the carrier has not been paid for its services. The carrier unsuccessfully has pursued its remedies against the consignee before turning to the shipper-consignor for payment. Nor had the statute of limitation run when SP finally sued Metals for payment. *352 We, of course, are in no position to condone slipshod collection practices and a carrier's violation of the governing regulations. But the terms of the bill of lading are specific and clear. Metals' failure to execute the nonrecourse provision in the bill of lading specifically placed upon it primary liability for the freight charges. To permit SP's violation of the credit regulations to be raised as an affirmative defense to its prima facie case would serve to nullify the enforceability of the nonrecourse clause. Nor do we believe that judicial implication of such a defense is necessary to encourage carrier compliance with credit rules. Railroads have real economic incentives to collect their freight charges from consignees insofar as they are able. The remedies for a carrier's violations of the regulations are best left to the ICC for such resolution as it thinks proper. We therefore hold that the Court of Appeals erred by permitting Metals to assert an affirmative defense against SP based on its violation of the ICC credit regulations. Such "equities" as may exist by virtue of the carrier's delay and its violation of the credit regulations are insufficient in magnitude to overcome the time-honored rule that under such circumstances, no "act or omission of the carrier (except the running of the statute of limitations) [will] estop or preclude it from enforcing payment of the full amount by a person liable therefor." Louisville & Nashville R. Co. v. Central Iron Co., 265 U. S., at 65. The judgment of the Court of Appeals is reversed. It is so ordered.

This case presents the question whether a common carrier's violation of credit regulations issued by the Interstate Commerce Commission (ICC) bars the carrier's collection of a lawful freight charge from a shipper-consignor who, under the terms of the shipment's bill of lading, is primarily liable for the charge. I Petitioner Southern Pacific Transportation Company (SP) is a common carrier by rail. Respondent Commercial Metals Company (Metals), a Delaware corporation with principal *338 place of business in Dallas, Tex., is in the business of buying and selling steel goods. Petitioner instituted this action against respondent in the United States District Court for the Northern District of Texas to recover freight charges for three cars of steel cobble shipped by rail in from Detroit, Mich., to Alhambra, Cal. Each of the three shipments was consigned by Metals to Penn Central Transportation Company, as initial carrier,[1] under the uniform straight bill of lading prescribed by the ICC. Each bill of lading included a "nonrecourse" clause that the consignor might sign. That clause reads: "Subject to Section 7 of Conditions, if the shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement: The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges."[2] In each instance, respondent Metals, as consignor, failed to execute this nonrecourse clause. Metals, however, already had received payment for the goods prior to shipment. Tr. of Oral Arg. 24-2; Brief for Respondent 21. *339 The first of the three cars was tendered to Penn Central at Detroit on April 11, for transportation to Carco Steel Corporation (Carco), as consignee, in Alhambra. SP released the car to Carco on April 2 without collecting the freight charge in advance of delivery. On the same day, however, SP mailed to Carco a bill for $4,34.11, the correct amount of the charge. Carco was not a credit patron of SP and had never applied to SP for credit. SP never before had made a delivery to Carco. Nevertheless, the carrier made no investigation of Carco's credit standing. The second and third shipments took place on May 2, when Metals consigned two other cars of cobble to Penn Central for transportation to Carco. SP delivered the cars to Carco on May 1. This time, SP released the cars only after receiving checks from Carco in the respective amounts of $,71.79 and $2,383.7 for the freight charges. The larger amount was correct, but the smaller check should have been for $3,283. and thus was $900 short.[3] On May 20, SP issued freight bills in the correct amounts to Carco. The two checks were dishonored by Carco's bank for insufficient funds. In August after efforts to collect the unpaid freight charges from Carco had proved fruitless, SP filed suit against Carco in a California state court. Attempts to serve the summons and complaint were unsuccessful. On December 17, 197, more than 30 months after the shipments, SP notified Metals of Carco's failure to pay the freight charges. SP requested that Metals, as the consignor who had failed to execute the nonrecourse provision in the bills of lading, pay the $13,79. total charges in satisfaction of its primary liability for the three shipments. This was the first notice to Metals that the freight charges had not been collected *340 from Carco. When payment was not forthcoming, SP instituted the present action against Metals in federal court. On this record, stipulated by the parties, the District Court ruled that SP had established a prima facie case for the recovery of the freight charges from Metals. It found the charges correct and in accord with applicable tariffs and that no part of those charges had been paid. App. 22. "Absent a showing of valid and affirmative defenses," then, Metals was liable to the carrier. The court rejected Metals' claim that the passage of time barred SP's recovery; although Metals lacked notice until December 197 that the charges for the shipments had not been paid, the court noted that the applicable period of limitation was three years and that the carrier had been making efforts to locate Carco and to receive payment. The District Court, however, went on to hold that Metals had established a valid equitable defense to SP's collection of the charges by showing that SP had failed to comply with the ICC's credit regulations promulgated pursuant to 3(2) of the Interstate Commerce Act, 49 U.S. C. 3(2).[4] App. 23. See 49 CFR pt. 1320 The court was not persuaded by SP's suggestion that Metals had failed to avail itself of its contractual opportunity for exoneration afforded by the nonrecourse provision in the bills of lading. The court concluded: "The loss sustained by [SP] was due entirely to its own fault and negligence by failing to take the proper credit precautions when it delivered the goods to Carco. I think that it is fundamentally unfair and inequitable for the defendant in this case to pay for the gross negligence of the plaintiff." App. 24. Accordingly, judgment was entered for Metals. *341 The United States Court of Appeals for the Fifth Circuit affirmed that judgment. Like the District Court, the Court of Appeals acknowledged that in the absence of a valid defense, Metals must be held liable to SP for the freight charges. The court felt, however, that 3(2) of the Act, the payment-before-delivery provision, provided a barrier to the carrier's collection of the charges from the consignor.[] The implementing regulation,[] which modified the statutory mandate by allowing for delivery of freight on credit for up to five days, nevertheless was "quite strict." Thus, Metals could assert as a defense the carrier's extension of credit to Carco without adequate precautions for a period in excess of that provided by the regulation. The court concluded: "Under these circumstances, we are compelled to hold that the carrier's failure to comply with the applicable ICC regulations is a defense, available to [Metals], in an action by [SP] for unpaid freight charges." 9. *342 Because of a conflict in the decided cases,[7] we granted certiorari. II Since 1919, the ICC has prescribed a uniform bill of lading for use on all interstate domestic shipments of freight by rail. See In re Bills of Lading, 2 I. C. C. 71 modified, 4 I. C. C. 37 (1921), further modified, I. C. C. 3 (1922).[8] The bill of lading is the basic transportation contract between the shipper-consignor and the carrier; its terms and conditions bind the shipper and all connecting carriers. Texas & Pacific R. *343 "Each [term] has in effect the force of a statute, of which all affected must take notice." Unless the bill provides to the contrary, the consignor remains primarily liable for the freight charges. When the ICC first promulgated the uniform bill of lading, it stated: "The consignor, being the one with whom the contract of transportation is made, is originally liable for the carrier's charges and unless he is specifically exempted by the provisions of the bill of lading, or unless the goods are received and transported under such circumstances as to clearly indicate an exemption for him, the carrier is entitled to look to the consignor for his charges." In re Bills of Lading, 2 I. C. C., at 721. This rule has not changed over time. Recently, the ICC again observed that the consignor's liability "is governed by the bill of lading contract between the parties and must be decided by interpreting that contract." C-G-F Grain v. Atchison, T. & S. F. R. 31 I. C. C. 710, 712 (197). Clearly, then, under the contract between Metals as consignor and SP as the carrier, the consignor was primarily liable for the freight charges in question. Just as clearly, however, Metals was in a position to effectuate its release from liability by executing the nonrecourse clause in the bill of lading. Signing that clause would have operated to excuse Metals from liability. By failing to execute the nonrecourse provision, Metals continued to be primarily liable for those charges. Illinois Steel ; New York, N. H. & H. R. See also Louisville & Nashville R. It is perhaps appropriate to note that a carrier has not only the right but also the duty to recover its proper charges for services performed. and n. 3. See Pittsburgh, *344 C., C. & St. L. R. This rule of strict adherence to statutory standards is in line with the historic purpose of the Interstate Commerce Act — to achieve uniformity in freight transportation charges, and thereby to eliminate the discrimination and favoritism that had plagued the railroad industry in the late 19th century. Midstate Horticultural ; New York, N. H. & H. R. 200 U.S. Both the District Court and the Court of Appeals correctly found that SP had established a prima facie case of Metals' liability for the freight charges in question by proving that Metals had failed to sign the nonrecourse clause. This much, indeed, is conceded by Metals. Brief for Respondent 11; Tr. of Oral Arg. 31. III SP concedes that its failure to collect all freight charges from Carco before releasing the shipments violated the ICC regulation with regard to at least the first of the three shipments. See 49 CFR 1320.1 quoted in n. The question, then, is whether the Court of Appeals properly found that SP's violation of the regulation provided Metals with an equitable affirmative defense to SP's prima facie case.[9] A. The ICC has comprehensively regulated the extension of credit to shippers by rail carriers. See 49 CFR pt. 1320 Yet neither the statute under which the regulations *34 were promulgated, 49 U.S. C. 3(2), nor the regulations themselves intimate that a carrier's violation of the credit rules automatically precludes it from collecting the lawful freight charge. Nor does either contain any words of affirmative defense to a freight charge action. Indeed, to the extent the ICC has spoken to this question, it has stated: "[A] violation of section 3(2) by [a carrier], in itself, would have had no effect on [a consignor's] responsibility for payment of undercharges." C-G-F Grain v. Atchison, T. & S. F. R. 31 I. C. C., at 712. Although 3(2) "prohibits a rail carrier from delivering freight without collecting all charges thereon[,] it contains no provision shielding a consignor from liability for lawful charges." Thus, at least in dictum, the ICC has suggested that "[t]he question of [a consignor's] liability [under a bill of lading] does not turn on whether any provision of the act has been violated." We view the absence of any provision for an affirmative defense in the ICC's credit regulations as an administrative construction of the statute that aids our determination of congressional intent. "[L]egislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. Accordingly, caution must temper judicial creativity in the face of legislative or regulatory silence." Ford Motor Credit We so regard the administrative silence here. When an administrative agency historically has engaged in comprehensive regulation of an industry's credit practices, the agency's silence regarding an affirmative defense based on a violation of those regulations must be deemed significant. B. The legislative and administrative history of the credit regulations further indicates that this silence was not inadvertent — the intent of the rules was to protect carriers, not to penalize them. Prior to 1918, the Federal Government did not regulate the extension of credit by rail carriers. *34 Wartime regulation revealed, however, that a general requirement of payment before delivery would protect the working capital of carriers and avoid discrimination among credit recipients. Cf. Ex parte No. MC-1, 2 M. C. C. 3, 374 (1937). After the first World War, when Congress returned the railroads to private control, 40 of the Transportation Act, 1920, added paragraph (2) to 3 of the Interstate Commerce Act. See n. The regulations adopted by the ICC in 1920 under the statute as so amended permitted railroads to extend limited credit to shippers on a nondiscriminatory basis. The regulations have remained largely unchanged to the present time. Until no court seriously suggested that a violation of the credit regulations precluded a carrier from collecting a freight charge from the party with primary liability. Instead, a defense of estoppel based on a violation of the credit regulations was held to be inconsistent with the purpose of the regulations themselves. Courts were concerned that a rule permitting selective estoppels would defeat the antidiscriminatory purpose of the Act and would weaken the capital structure of common carriers. See, e. g., Western Maryland R. 9 W. Va. 73, 123 S.E. 72, 7 ; Chicago Junction R. 11 Minn. 4, 49, 2 (192); East Texas Motor Freight 184 S.W.2d 0, 07 Despite the absence of any textual or historical support for an affirmative defense in either the statute or the regulations, the Court of Appeals concluded that Metals could raise SP's failure to comply fully with the regulations as an absolute equitable defense to SP's freight charge action. The Court of Appeals relied primarily on what it regarded as "a closely analogous situation," 41 F.2d 7, presented in Consolidated Freightways 442 F.2d On examination, however, that Seventh Circuit case plainly is distinguishable from the present one. *347 The defendant there was a consignee to whom goods had been delivered under bills of lading marked "prepaid." Relying upon the carrier's explicit representation of prepayment, the consignee paid the amount of the freight charges to the shipper-consignor. In fact, however, the carrier had extended credit to the consignor and had failed to collect the charges within the period allowed by the regulations. When the consignor went out of business, the carrier turned to the consignee for payment. The Court of Appeals, by a divided vote, held the carrier estopped. Admiral differs from this case in four crucial respects. First, in Admiral, the carrier not only violated ICC credit regulations but also made to the defendant a material misrepresentation regarding prepayment. The carrier here, in contrast, was charged solely with failure to observe the applicable ICC credit regulations. Second, in the Seventh Circuit case, the consignee-defendant had paid full freight charges to the consignor. Had the Seventh Circuit also awarded relief to the carrier, it would have "require[d] an innocent consignee to defray freight charges exactly double the amount contemplated by the applicable tariffs." 442 F.2d, at Here, the defendant paid no freight charges; thus, an award of relief to the carrier creates no possibility of enforcing a double payment. Third, in Admiral, the grounds for equitable estoppel were created by the consignee's payment of freight charges in detrimental reliance on the carrier's misrepresentation. The carrier's violation of the credit regulations offered only "additional grounds for the intervention of the principles of equity." at 0 In this case, there is no suggestion that the consignor knew of, or changed its position detrimentally in reliance on, the carrier's credit violation. Fourth, and most significant, the defendant-consignee in the Seventh Circuit case had no means by which to protect itself from freight charge liability. In this case, of course, the defendant-consignor could have protected itself completely *348 simply by signing the nonrecourse clause in the bills of lading. C. Finally, public policy concerns disfavor judicial implication of affirmative defenses based on carrier violations of the Commission's credit regulations. We recognize that the regulations are technical. Thousands of railcars are delivered every day by the country's railroads. See Association of American Railroads, Yearbook of Railroad Facts 2 (approximately 2,000 deliveries per day). Almost inevitably, some cars will be delivered to noncredit patrons, some freight bills will be sent out late, and some accounts will not be collected within the specified time. A 19 study by the ICC's Bureau of Enforcement found that almost a third of 1,71 bills examined were overdue and that over half of those overdue were delinquent more than 10 days. See In re Regulations for Payment of Rates and Charges, 32 I. C. C. 483, 48 (19).[10] After appraising this data, the ICC agreed that "the evidence establishes many and continued violations of the credit regulations. However, we are unable to conclude on this record that rigid rules would provide a practical or desirable solution. [T]here are many reasons for credit violations which are beyond correction by rules, e. g., where shippers have unexpected peak workloads, where there are controversies over amounts due, where additional information is needed such as weights or evaluations, where standard office procedures are in the process of change, where temporary cash flow problems occur, and where it becomes necessary to check the validity of charges with third persons. Stringent credit rules would destroy the flexibility needed to meet problems of this nature." Indeed, in 1980, the ICC proposed repealing the credit regulations altogether, noting that "apparent, widespread *349 noncompliance with the regulations indicates that the payment periods and other time limits prescribed are simply not realistic for many of the situations in which they apply." Ex parte Nos. MC-1, 73, 143, and 170, 4 Fed. Reg. 317. It thus appears that the Court of Appeals in the present case implied an affirmative defense that would penalize railroads for violations of the credit regulations just as the agency responsible for administering those regulations was pronouncing them unrealistic. The prospect raised for the carrier is that it will be barred from recovering lawful freight charges, even from a consignor who fails to execute the nonrecourse clause, for possibly unavoidable violations of the credit rules. "The obvious consequence would be to discourage [carriers] from extending credit where the operation of this rather difficult statute is in doubt." Bruce's Juices, 73 Ironically, those shippers who pay their bills currently in a responsible manner would suffer as a result. Metals argues that a ruling for SP places SP "in the unrealistic position of being incapable of doing any wrong" and therefore creates "no incentive [for carriers] to improve inefficient and careless credit practices." Brief for Respondent 12. Metals further claims that the loss at issue here would not have occurred if SP only had complied with its obligations under the regulations. The answer to this is that the ICC has ample authority to police the credit practices of carriers and thereby to deter improper practices. This authority includes the power to issue a cease-and-desist order, see Shaw Warehouse v. Southern R. 308 I. C. C. 09, 33-34, 37 (199), appeal dism'd sub nom. Southern R. 18 F. Supp. 29 (ND Ala. 190); the power to seek a federal-court injunction requiring a carrier to comply with the regulations, see 0 F.2d 130 ; and the power to bring suit for the $,000 civil forfeiture, provided by 49 U.S. C. 1(8) and 49 U.S. C. 11901(a) (197 ed., Supp. *30 III), for each knowing violation of an order of the Commission, see, e. g., United 38 F.2d 11 (CA10 197), cert. denied sub nom. Denver & R. G. W. R. U.S. 919 (198); United (ED Pa. 199). Thus, the ICC may regulate the credit practices of carriers even without the judicially created remedy of forfeiture of freight charges. Furthermore, a reading of the cited cases reveals that the question whether a credit violation has occurred often will require the ICC or the courts to conduct a factual inquiry as to the carrier's intent to violate the regulations. The "credit violation defense" adopted by the Court of Appeals requires a carrier to forfeit freight charges without regard to the nature of its violation.[11] This inflexible approach *31 disenables courts from considering the carrier's intent, the degree of the shipper's fault, the effect of enforcement on the carrier's existing permissible credit practices, and other subjective factors in deciding whether or not to enforce a shipper's primary liability for freight charges. Metals also advances a number of "double payment" cases in support of its claim for an affirmative defense. See, e. g., Southern Pacific Transp. 4 F.2d 1219 ; Consolidated Freightways 442 F.2d ; Farrell Lines, 30 F. Supp. 1348 (SDNY), aff'd, 419 F.2d 83 (CA2 199), cert. denied, ; Southern Pacific 11 A.2d 70 (19). To be sure, these cases speak in equity terms. But none of these cases turned solely on a carrier's violation of credit regulations. Each and all of them involved a carrier's misrepresentation, such as a false assertion of prepayment on the bill of lading, upon which a consignee detrimentally relied only to find itself later sued by the carrier for the same freight charges. We find that these double payment cases constitute their own category and stand against the placement of duplication of liability upon an innocent party. See Consolidated Freightways 442 F. 2d, at As we have noted above, no similar double payment liability is in prospect here. Metals, not the carrier, selected the consignee. Furthermore, Metals has been paid for its goods while the carrier has not been paid for its services. The carrier unsuccessfully has pursued its remedies against the consignee before turning to the shipper-consignor for payment. Nor had the statute of limitation run when SP finally sued Metals for payment. *32 We, of course, are in no position to condone slipshod collection practices and a carrier's violation of the governing regulations. But the terms of the bill of lading are specific and clear. Metals' failure to execute the nonrecourse provision in the bill of lading specifically placed upon it primary liability for the freight charges. To permit SP's violation of the credit regulations to be raised as an affirmative defense to its prima facie case would serve to nullify the enforceability of the nonrecourse clause. Nor do we believe that judicial implication of such a defense is necessary to encourage carrier compliance with credit rules. Railroads have real economic incentives to collect their freight charges from consignees insofar as they are able. The remedies for a carrier's violations of the regulations are best left to the ICC for such resolution as it thinks proper. We therefore hold that the Court of Appeals erred by permitting Metals to assert an affirmative defense against SP based on its violation of the ICC credit regulations. Such "equities" as may exist by virtue of the carrier's delay and its violation of the credit regulations are insufficient in magnitude to overcome the time-honored rule that under such circumstances, no "act or omission of the carrier (except the running of the statute of limitations) [will] estop or preclude it from enforcing payment of the full amount by a person liable therefor." Louisville & Nashville R. 2 U. S., at The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Marshall

majority

United States v. Miller

https://www.courtlistener.com/opinion/111404/united-states-v-miller/

https://www.courtlistener.com/api/rest/v3/clusters/111404/

1984-072

The issue presented is whether the Fifth Amendment's grand jury guarantee[1] is violated when a defendant is tried under an indictment that alleges a certain fraudulent scheme but is convicted based on trial proof that supports only a significantly narrower and more limited, though included, fraudulent scheme. A grand jury in the Northern District of California returned an indictment charging respondent Miller with three counts of mail fraud in violation of 18 U.S. C. § 1341. After the Government moved to dismiss the third count, Miller was tried before a jury and convicted of the remaining two. He appealed asserting that there had been a fatal variance between the "scheme and artifice" to defraud charged in the indictment and that which the Government proved at trial. The Court of Appeals for the Ninth Circuit agreed and vacated the judgment of conviction. 715 F.2d 1360 (1983), modified, 728 F.2d 1269 (1984). We granted certiorari, 469 U.S. 814 (1984), and reverse. I A The indictment had charged Miller with various fraudulent acts in connection with a burglary at his place of business. *132 Miller allegedly had defrauded his insurer both by consenting to the burglary in advance and by lying to the insurer about the value of his loss.[2] The trial proof, however, concerned only the latter allegation, focusing on whether, prior to the burglary, Miller actually had possessed all the property that he later claimed was taken. This proof was clearly sufficient *133 to support a jury finding that Miller's claim to his insurer had grossly inflated the value of any actual loss.[3] The Government moved to strike the part of the indictment that alleged prior knowledge of the burglary, and it correctly argued that even without that allegation the indictment still made out a violation of § 1341.[4] Respondent's counsel opposed the change, and at his urging the entire indictment was sent to the jury. The jury found Miller *134 guilty, and respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the indictment. Agreeing that Miller's Fifth Amendment right to be tried only on a grand jury indictment had been violated, the Court of Appeals vacated the conviction. It succinctly stated its rationale: "The grand jury may well have declined to indict Miller simply on the basis of his exaggeration of the amount of his claimed loss. . . . In fact it is quite possible that the grand jury would have been unwilling or unable to return an indictment based solely on Miller's exaggeration of the amount of his claimed loss even though it had concluded that an indictment could be returned based on the overall scheme involving a use of the mail caused by Miller's knowing consent to the burglary." 715 F.2d, at 1362-1363. B Miller's indictment properly alleged violations of 18 U.S. C. § 1341, and it fully and clearly set forth a number of ways in which the acts alleged constituted violations. The facts proved at trial clearly conformed to one of the theories of the offense contained within that indictment, for the indictment gave Miller clear notice that he would have to defend against an allegation that he " `well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company.' " 715 F.2d, at 1361-1362 (quoting indictment). Competent defense counsel certainly should have been on notice that that offense was charged and would need to be defended against. Accordingly, there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary; *135 nor can there be a showing that the variance prejudiced the fairness of respondent's trial in any other way. Cf. Kotteakos v. United States, 328 U.S. 750 (1946). See also Berger v. United States, 295 U.S. 78, 83 (1935). Cf. also United States v. Ballard, 322 U.S. 78, 91 (1944) (Stone, C. J., dissenting). The indictment was also sufficient to allow Miller to plead it in the future as a bar to subsequent prosecutions. Therefore, none of these "notice" related concerns — which of course are among the important concerns underlying the requirement that criminal charges be set out in an indictment — would support the result of the Court of Appeals. See Russell v. United States, 369 U.S. 749, 763-764 (1962). The Court of Appeals did not disagree, but instead argued that Miller had been prejudiced in his right to be free from a trial for any offense other than that alleged in the grand jury's indictment. 728 F.2d, at 1270. It reasoned that a grand jury's willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal plan. 715 F.2d, at 1362-1363. Relying on the Fifth Amendment's grand jury guarantee, the Court of Appeals concluded that a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included within, the scheme that the grand jury had alleged. The Court of Appeals cited two prior decisions of this Court that emphasized the right of an accused to be tried only on charges that had in fact been passed on by a grand jury. Ibid. (citing Stirone v. United States, 361 U.S. 212 (1960), and Ex parte Bain, 121 U.S. 1 (1887)). Cf. United States v. Mastelotto, 717 F.2d 1238, 1248-1250 (CA9 1983) (similarly relying on Stirone and Bain). II The Government correctly argues that the Court of Appeals' result conflicts with a number of this Court's prior *136 decisions interpreting the Fifth Amendment's Grand Jury Clause. The Court has long recognized that an indictment may charge numerous offenses or the commission of any one offense in several ways. As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime. See, e. g., Ford v. United States, 273 U.S. 593 (1927); Salinger v. United States, 272 U.S. 542 (1926). See also Berger v. United States, supra; Hall v. United States, 168 U.S. 632, 638-640 (1898). Indeed, a number of longstanding doctrines of criminal procedure are premised on the notion that each offense whose elements are fully set out in an indictment can independently sustain a conviction. See, e. g., Turner v. United States, 396 U.S. 398, 420 (1970) ("[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged"); Crain v. United States, 162 U.S. 625, 634-636 (1896) (indictment count that alleges in the conjunctive a number of means of committing a crime can support a conviction if any of the alleged means are proved); Dealy v. United States, 152 U.S. 539, 542 (1894) (prosecution's failure to prosecute certain counts of an indictment does not affect the validity of the indictment as to the other counts). A review of prior cases allowing convictions to stand in the face of variances between the indictment and proof makes the Court of Appeals' error clear. Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment. A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as "a useless averment" that "may be ignored." Ford v. United States, 273 U. S., at 602. In Ford, for example, an indictment charged a defendant with *137 conspiring to import liquor in violation of various federal laws and in violation of a treaty. "The validity of the indictment [was] attacked . . . because it charge[d] that the conspiracy was to violate the treaty, although the treaty create[d] no offense against the law of the United States." Ibid. Although the grand jury had included the treaty allegation as part of the indictment, this Court upheld the conviction because "that part of the indictment [was] merely surplusage and may be rejected." Ibid. This treatment of allegations independent of and unnecessary to the offense on which a conviction ultimately rests has not been confined to allegations that, like those in Ford, would have had no legal relevance if proved. In Salinger v. United States, supra, for example, the Court was presented with facts quite similar to the instant case. A grand jury charged Salinger with mail fraud in an indictment containing several counts, "[a]ll relat[ing] to the same scheme to defraud, but each charg[ing] a distinct use of the mail for the purpose of executing the scheme." Id., at 546. As was the case with Miller, Salinger's "scheme to defraud as set forth in the indictment . . . comprehended several relatively distinct plans for fleecing intended victims." Id., at 548. Because the evidence only sustained the charge as to one of the plans, the trial judge withdrew from the jury those portions of the indictment that related to all other plans. Salinger argued then, just as Miller argues now, that the variance between the broad allegations in the indictment and the narrower proof at trial violated his right to have had a grand jury screen any alleged offenses upon which he might be convicted at trial. This Court unanimously rejected Salinger's argument on the ground that the offense proved was fully contained within the indictment. Nothing had been added to the indictment which, in the Court's view, "remained just as it was returned by the grand jury." Ibid. "[T]he trial was on the charge preferred in it and not on a modified charge," ibid., and there *138 was thus "not even remotely an infraction of the constitutional provision that `no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.' " Id., at 549. See also Berger v. United States, 295 U.S. 78 (1935); Goto v. Lane, 265 U.S. 393 (1924); Hall v. United States, supra, at 638-640.[5] The result reached by the Court of Appeals thus conflicts with the results reached by this Court in such cases as Salinger and Ford. See also Hall v. United States, supra, at 638-640; Crain v. United States, supra, at 634-636. III The Court of Appeals principally relied on this Court's decision in Stirone v. United States, 361 U.S. 212 (1960), to support its conclusion that the Fifth Amendment's grand jury right is violated by a conviction for a criminal plan narrower than, but fully included within, the plan set forth in the indictment. Stirone, however, stands for a very different proposition. In Stirone the offense proved at trial was not fully contained in the indictment, for trial evidence had "amended" the indictment by broadening the possible bases for conviction from that which appeared in the indictment. Stirone was thus wholly unlike the cases discussed in Part II, supra, and unlike respondent's case, all of which involve trial evidence that narrowed the indictment's charges without adding any new offenses. As the Stirone Court said, the issue was "whether [Stirone] was convicted of an offense not *139 charged in the indictment." 361 U.S., at 213 (emphasis added). Stirone, a union official, was indicted for and convicted of unlawfully interfering with interstate commerce in violation of the Hobbs Act. 18 U.S. C. § 1951. More specifically, the indictment charged that he had engaged in extortion that obstructed shipments of sand from outside Pennsylvania into that State, where it was to be used in the construction of a steel mill. At trial, however, the prosecution's proof of the required interference with interstate commerce went beyond the allegation of obstructed sand shipments. The prosecutor also attempted to prove that Stirone had obstructed the steel mill's eventual export of steel to surrounding States. Because the conviction might have been based on the evidence of obstructed steel exports, an element of an offense not alleged in the indictment, a unanimous Court held that the indictment had been unconstitutionally "broadened." "The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here,. . . we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet because of the court's admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error." 361 U.S., at 218-219. The Court contrasted Stirone's case with cases like Ford v. United States. See 361 U.S., at 217. As we discussed in Part II, supra, in Ford the Court had refused to invalidate a conviction because of variances between the indictment and the narrower trial proof. The Stirone Court declared that, unlike that sort of variance, "the addition charging interference with steel exports [in Stirone was] neither trivial, *140 useless, nor innocuous. While there was a variance in the sense of a variation between pleading and proof, that variation [had in Stirone] destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error." 361 U.S., at 217 (citations omitted). Accord, Russell v. United States, 369 U. S., at 770-771 (following Stirone). Miller has shown no deprivation of his "substantial right to be tried only on charges presented in an indictment returned by a grand jury." 361 U.S., at 217. In contrast to Stirone, Miller was tried on an indictment that clearly set out the offense for which he was ultimately convicted. His complaint is not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than was necessary. IV The one decision of this Court that does offer some support to the Court of Appeals' result is Ex parte Bain, 121 U.S. 1 (1887), for there the Court treated as an unconstitutional "amendment" the deletion from an indictment of allegations that would not have been necessary to prove the offense. This deletion, in the Court's view, did constitute a compromise of the defendant's right to be tried only on a grand jury's indictment. Bain was a bank cashier who had been indicted for including false statements in a report required to be made to the Comptroller of the Currency. The indictment charged that when Bain filed these required reports, he "did then and there well know and believe the said report and statement to be false to the extent and in the mode and manner above set forth; and [he] made said false statement and report in manner and form as above set forth with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of said [banking] association . . . ." Id., at 4. The relevant statute made it a criminal offense to file *141 " `any false entry in any book, report, or statement . . . with intent . . . to deceive . . . any agent appointed to examine the affairs of any such association . . . .' " Id., at 3 (quoting Rev. Stat. § 5209). Thus under the terms of the statute, there was no need to charge Bain with intending to deceive "the Comptroller of the Currency." An intent to deceive the agent appointed to examine the reports was all that was necessary to prove the offense. Under later cases, such as Ford and Salinger, the presence of such surplusage in the indictment would not invalidate a conviction as long as the necessary intent was also alleged and proved. But in Bain the trial court sustained Bain's demurrer to the indictment. After sustaining the demurrer, however, the court granted a motion by the Government "that the indictment be amended by striking out the words `the Comptroller of the Currency and.'" 121 U.S., at 5. Bain was then required to plead to the amended indictment, and was tried and convicted under that indictment. Ibid. This Court granted a writ of habeas corpus on the ground that Bain's Fifth Amendment right to stand trial only on an indictment returned by a grand jury had been violated. The opinion reasoned that a court could not, consistent with the Fifth Amendment, assume that the narrower indictment would have been returned by the grand jury that returned the broader one.[6] *142 Bain may best be understood in terms of two distinct propositions. Most generally, Bain stands for the proposition that a conviction cannot stand if based on an offense that is different from that alleged in the grand jury's indictment. But more specifically, Bain can support the proposition that the striking out of parts of an indictment invalidates the whole of the indictment, for a court cannot speculate as to whether the grand jury had meant for any remaining offense to stand independently, even if that remaining offense clearly was included in the original text. Under this latter proposition, the narrowing of an indictment is no different from the adding of a new allegation that had never been considered by the grand jury; both are treated as "amendments" that alter the nature of the offense charged. In evaluating the relevance of Bain to the instant case, it is necessary to examine these two aspects of Bain separately, for the Court has treated these two propositions quite differently in the years since Bain. The proposition that a defendant cannot be convicted of an offense different from that which was included in the indictment was broadly declared in Bain: "If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which *143 the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says `no person shall be held to answer,' may be frittered away until its value is almost destroyed." Id., at 10. This aspect of Bain has been reaffirmed in a number of subsequent cases. See, e. g., United States v. Norris, 281 U.S. 619, 622 (1930) (citing Bain for the rule that "nothing can be added to an indictment without the concurrence of the grand jury by which the bill was found"). The most important reaffirmation, of course, was Stirone. See Part III, supra. In Stirone, the Court's unanimous opinion extensively relied on Bain for the proposition that "a court cannot permit a defendant to be tried on charges that are not made in the indictment against him," 361 U.S., at 217, and therefore that "after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Id., at 215-216. See also Russell v. United States, 369 U. S., at 770 (citing Bain for the "settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form").[7] *144 But this aspect of Bain gives no support to Miller in this case, see Part III, supra, for the offense that formed the basis of Miller's conviction was clearly and fully set out in the indictment. Miller must instead rest on the second, and more specific, proposition found in Bain, that a narrowing of the indictment constitutes an amendment that renders the indictment void. As is clear from the discussion of cases in Part II, supra, this second proposition did not long survive Bain. Indeed, when defendants have sought to rely on Bain for this point, this Court has limited or distinguished the case, sustaining convictions where courts had withdrawn or ignored independent and unnecessary allegations in the indictments. See, e. g., Ford v. United States, 273 U. S., at 602 (distinguishing Bain); Salinger v. United States, 272 U. S., at 549 (same). Modern criminal law has generally accepted that an indictment will support each offense contained within it. To the extent Bain stands for the proposition that it constitutes an unconstitutional amendment to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, that case has simply not survived. To avoid further confusion, we now explicitly reject that proposition. Rejecting this aspect of Bain is hardly a radical step, however, given that in the years since Bain this Court has largely ignored this element of the case. Moreover, in rejecting this proposition's continued validity, we do not limit Bain's more general proposition concerning the impermissibility of actual additions to the offenses alleged in an indictment, a proposition we have repeatedly reaffirmed. See Part III, supra; text accompanying n. 7, supra. That our holding today is fully consistent with prior legal understanding is apparent from an examination of the state of the law, as seen by Chief Justice Stone, more than 40 years ago: "An indictment is amended when it is so altered as to charge a different offense from that found by the grand *145 jury. Ex parte Bain, 121 U.S. 1. But here there was no alteration of the indictment, Salinger v. United States, 272 U.S. 542, 549, nor did the court's action, in effect, add anything to it by submitting to the jury matters which it did not charge. United States v. Norris, 281 U.S. 619, 622. In Salinger v. United States, supra, 548-9, we explicitly held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury's consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment. See also Goto v. Lane, 265 U.S. 393, 402-3; Ford v. United States, 273 U.S. 593, 602. Were the rule otherwise the common practice of withdrawing from the jury's consideration one count of an indictment while submitting others for its verdict, sustained in Dealy v. United States, 152 U.S. 539, 542, would be a fatal error." United States v. Ballard, 322 U. S., at 90-91 (dissenting). V In light of the foregoing, the proper disposition of this case is clear. The variance complained of added nothing new to the grand jury's indictment and constituted no broadening. As in Salinger and Ford, what was removed from the case was in no way essential to the offense on which the jury convicted. We therefore disagree with the Court of Appeals on the issue of whether Miller has shown any compromise of his right to be tried only on offenses for which a grand jury has returned an indictment. No such compromise has been shown. The judgment of the Court of Appeals is accordingly reversed. It is so ordered. JUSTICE POWELL took no part in the consideration or decision of this case.

The issue presented is whether the Fifth Amendment's grand jury guarantee[1] is violated when a defendant is tried under an indictment that alleges a certain fraudulent scheme but is convicted based on trial proof that supports only a significantly narrower and more limited, though included, fraudulent scheme. A grand jury in the Northern District of California returned an indictment charging respondent Miller with three counts of mail fraud in violation of 18 U.S. C. 1341. After the Government moved to dismiss the third count, Miller was tried before a jury and convicted of the remaining two. He appealed asserting that there had been a fatal variance between the "scheme and artifice" to defraud charged in the indictment and that which the Government proved at trial. The Court of Appeals for the Ninth Circuit agreed and vacated the judgment of conviction. modified, We granted certiorari, and reverse. I A The indictment had charged Miller with various fraudulent acts in connection with a burglary at his place of business. *132 Miller allegedly had defrauded his insurer both by consenting to the burglary in advance and by lying to the insurer about the value of his loss.[2] The trial proof, however, concerned only the latter allegation, focusing on whether, prior to the burglary, Miller actually had possessed all the property that he later claimed was taken. This proof was clearly sufficient *133 to support a jury finding that Miller's claim to his insurer had grossly inflated the value of any actual loss.[3] The Government moved to strike the part of the indictment that alleged prior knowledge of the burglary, and it correctly argued that even without that allegation the indictment still made out a violation of 1341.[4] Respondent's counsel opposed the change, and at his urging the entire indictment was sent to the jury. The jury found Miller *134 guilty, and respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the Agreeing that Miller's Fifth Amendment right to be tried only on a grand jury indictment had been violated, the Court of Appeals vacated the conviction. It succinctly stated its rationale: "The grand jury may well have declined to indict Miller simply on the basis of his exaggeration of the amount of his claimed loss. In fact it is quite possible that the grand jury would have been unwilling or unable to return an indictment based solely on Miller's exaggeration of the amount of his claimed loss even though it had concluded that an indictment could be returned based on the overall scheme involving a use of the mail caused by Miller's knowing consent to the burglary." -1363. B Miller's indictment properly alleged violations of 18 U.S. C. 1341, and it fully and clearly set forth a number of ways in which the acts alleged constituted violations. The facts proved at trial clearly conformed to one of the theories of the offense contained within that indictment, for the indictment gave Miller clear notice that he would have to defend against an allegation that he " `well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company.' " -1362 Competent defense counsel certainly should have been on notice that that offense was charged and would need to be defended against. Accordingly, there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary; *135 nor can there be a showing that the variance prejudiced the fairness of respondent's trial in any other way. Cf. See also Cf. also United The indictment was also sufficient to allow Miller to plead it in the future as a bar to subsequent prosecutions. Therefore, none of these "notice" related concerns — which of course are among the important concerns underlying the requirement that criminal charges be set out in an indictment — would support the result of the Court of Appeals. See The Court of Appeals did not disagree, but instead argued that Miller had been prejudiced in his right to be free from a trial for any offense other than that alleged in the grand jury's It reasoned that a grand jury's willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal -1363. Relying on the Fifth Amendment's grand jury guarantee, the Court of Appeals concluded that a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included within, the scheme that the grand jury had alleged. The Court of Appeals cited two prior decisions of this Court that emphasized the right of an accused to be tried only on charges that had in fact been passed on by a grand jury. and Ex parte Bain, ). Cf. United The Government correctly argues that the Court of Appeals' result conflicts with a number of this Court's prior *136 decisions interpreting the Fifth Amendment's Grand Jury Clause. The Court has long recognized that an indictment may charge numerous offenses or the commission of any one offense in several ways. As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime. See, e. g., ; See also Hall v. United Indeed, a number of longstanding doctrines of criminal procedure are premised on the notion that each offense whose elements are fully set out in an indictment can independently sustain a conviction. See, e. g., Turner v. United ; Crain v. United ; Dealy v. United A review of prior cases allowing convictions to stand in the face of variances between the indictment and proof makes the Court of Appeals' error clear. Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as "a useless averment" that "may be ignored." In Ford, for example, an indictment charged a defendant with *13 conspiring to import liquor in violation of various federal laws and in violation of a treaty. "The validity of the indictment [was] attacked because it charge[d] that the conspiracy was to violate the treaty, although the treaty create[d] no offense against the law of the United" Although the grand jury had included the treaty allegation as part of the indictment, this Court upheld the conviction because "that part of the indictment [was] merely surplusage and may be rejected." This treatment of allegations independent of and unnecessary to the offense on which a conviction ultimately rests has not been confined to allegations that, like those in Ford, would have had no legal relevance if proved. In for example, the Court was presented with facts quite similar to the instant case. A grand jury charged Salinger with mail fraud in an indictment containing several counts, "[a]ll relat[ing] to the same scheme to defraud, but each charg[ing] a distinct use of the mail for the purpose of executing the scheme." As was the case with Miller, Salinger's "scheme to defraud as set forth in the indictment comprehended several relatively distinct plans for fleecing intended victims." Because the evidence only sustained the charge as to one of the plans, the trial judge withdrew from the jury those portions of the indictment that related to all other plans. Salinger argued then, just as Miller argues now, that the variance between the broad allegations in the indictment and the narrower proof at trial violated his right to have had a grand jury screen any alleged offenses upon which he might be convicted at trial. This Court unanimously rejected Salinger's argument on the ground that the offense proved was fully contained within the Nothing had been added to the indictment which, in the Court's view, "remained just as it was returned by the grand jury." "[T]he trial was on the charge preferred in it and not on a modified charge," ibid., and there *138 was thus "not even remotely an infraction of the constitutional provision that `no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.' " See also ; ; Hall v. United at[5] The result reached by the Court of Appeals thus conflicts with the results reached by this Court in such cases as Salinger and Ford. See also Hall v. United at ; Crain v. United at I The Court of Appeals principally relied on this Court's decision in to support its conclusion that the Fifth Amendment's grand jury right is violated by a conviction for a criminal plan narrower than, but fully included within, the plan set forth in the Stirone, however, stands for a very different proposition. In Stirone the offense proved at trial was not fully contained in the indictment, for trial evidence had "amended" the indictment by broadening the possible bases for conviction from that which appeared in the Stirone was thus wholly unlike the cases discussed in Part and unlike respondent's case, all of which involve trial evidence that narrowed the indictment's charges without adding any new offenses. As the Stirone Court said, the issue was "whether [Stirone] was convicted of an offense not *139 charged in the " Stirone, a union official, was indicted for and convicted of unlawfully interfering with interstate commerce in violation of the Hobbs Act. 18 U.S. C. 1951. More specifically, the indictment charged that he had engaged in extortion that obstructed shipments of sand from outside Pennsylvania into that State, where it was to be used in the construction of a steel mill. At trial, however, the prosecution's proof of the required interference with interstate commerce went beyond the allegation of obstructed sand shipments. The prosecutor also attempted to prove that Stirone had obstructed the steel mill's eventual export of steel to surrounding Because the conviction might have been based on the evidence of obstructed steel exports, an element of an offense not alleged in the indictment, a unanimous Court held that the indictment had been unconstitutionally "broadened." "The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here,. we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet because of the court's admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error." -219. The Court contrasted Stirone's case with cases like See As we discussed in Part in Ford the Court had refused to invalidate a conviction because of variances between the indictment and the narrower trial proof. The Stirone Court declared that, unlike that sort of variance, "the addition charging interference with steel exports [in Stirone was] neither trivial, *140 useless, nor innocuous. While there was a variance in the sense of a variation between pleading and proof, that variation [had in Stirone] destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error." Accord, -1 Miller has shown no deprivation of his "substantial right to be tried only on charges presented in an indictment returned by a grand jury." In contrast to Stirone, Miller was tried on an indictment that clearly set out the offense for which he was ultimately convicted. His complaint is not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than was necessary. IV The one decision of this Court that does offer some support to the Court of Appeals' result is Ex parte Bain, for there the Court treated as an unconstitutional "amendment" the deletion from an indictment of allegations that would not have been necessary to prove the offense. This deletion, in the Court's view, did constitute a compromise of the defendant's right to be tried only on a grand jury's Bain was a bank cashier who had been indicted for including false statements in a report required to be made to the Comptroller of the Currency. The indictment charged that when Bain filed these required reports, he "did then and there well know and believe the said report and statement to be false to the extent and in the mode and manner above set forth; and [he] made said false statement and report in manner and form as above set forth with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of said [banking] association" The relevant statute made it a criminal offense to file *141 " `any false entry in any book, report, or statement with intent to deceive any agent appointed to examine the affairs of any such association' " (quoting Rev. Stat. 5209). Thus under the terms of the statute, there was no need to charge Bain with intending to deceive "the Comptroller of the Currency." An intent to deceive the agent appointed to examine the reports was all that was necessary to prove the offense. Under later cases, such as Ford and Salinger, the presence of such surplusage in the indictment would not invalidate a conviction as long as the necessary intent was also alleged and proved. But in Bain the trial court sustained Bain's demurrer to the After sustaining the demurrer, however, the court granted a motion by the Government "that the indictment be amended by striking out the words `the Comptroller of the Currency and.'" Bain was then required to plead to the amended indictment, and was tried and convicted under that This Court granted a writ of habeas corpus on the ground that Bain's Fifth Amendment right to stand trial only on an indictment returned by a grand jury had been violated. The opinion reasoned that a court could not, consistent with the Fifth Amendment, assume that the narrower indictment would have been returned by the grand jury that returned the broader one.[6] *142 Bain may best be understood in terms of two distinct propositions. Most generally, Bain stands for the proposition that a conviction cannot stand if based on an offense that is different from that alleged in the grand jury's But more specifically, Bain can support the proposition that the striking out of parts of an indictment invalidates the whole of the indictment, for a court cannot speculate as to whether the grand jury had meant for any remaining offense to stand independently, even if that remaining offense clearly was included in the original text. Under this latter proposition, the narrowing of an indictment is no different from the adding of a new allegation that had never been considered by the grand jury; both are treated as "amendments" that alter the nature of the offense charged. In evaluating the relevance of Bain to the instant case, it is necessary to examine these two aspects of Bain separately, for the Court has treated these two propositions quite differently in the years since Bain. The proposition that a defendant cannot be convicted of an offense different from that which was included in the indictment was broadly declared in Bain: "If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which *143 the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says `no person shall be held to answer,' may be frittered away until its value is almost destroyed." This aspect of Bain has been reaffirmed in a number of subsequent cases. See, e. g., United v. Norris, The most important reaffirmation, of course, was Stirone. See Part I, In Stirone, the Court's unanimous opinion extensively relied on Bain for the proposition that "a court cannot permit a defendant to be tried on charges that are not made in the indictment against him," and therefore that "after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." See also (citing Bain for the "settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form").[] *144 But this aspect of Bain gives no support to Miller in this case, see Part I, for the offense that formed the basis of Miller's conviction was clearly and fully set out in the Miller must instead rest on the second, and more specific, proposition found in Bain, that a narrowing of the indictment constitutes an amendment that renders the indictment void. As is clear from the discussion of cases in Part this second proposition did not long survive Bain. Indeed, when defendants have sought to rely on Bain for this point, this Court has limited or distinguished the case, sustaining convictions where courts had withdrawn or ignored independent and unnecessary allegations in the indictments. See, e. g., ; 22 U. S., Modern criminal law has generally accepted that an indictment will support each offense contained within it. To the extent Bain stands for the proposition that it constitutes an unconstitutional amendment to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, that case has simply not survived. To avoid further confusion, we now explicitly reject that proposition. Rejecting this aspect of Bain is hardly a radical step, however, given that in the years since Bain this Court has largely ignored this element of the case. Moreover, in rejecting this proposition's continued validity, we do not limit Bain's more general proposition concerning the impermissibility of actual additions to the offenses alleged in an indictment, a proposition we have repeatedly reaffirmed. See Part I, text accompanying n. That our holding today is fully consistent with prior legal understanding is apparent from an examination of the state of the law, as seen by Chief Justice Stone, more than 40 years ago: "An indictment is amended when it is so altered as to charge a different offense from that found by the grand *145 jury. Ex parte Bain, But here there was no alteration of the indictment, nor did the court's action, in effect, add anything to it by submitting to the jury matters which it did not charge. United v. Norris, In we explicitly held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury's consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the See also ; Were the rule otherwise the common practice of withdrawing from the jury's consideration one count of an indictment while submitting others for its verdict, sustained in Dealy v. United would be a fatal error." United - V In light of the foregoing, the proper disposition of this case is clear. The variance complained of added nothing new to the grand jury's indictment and constituted no broadening. As in Salinger and Ford, what was removed from the case was in no way essential to the offense on which the jury convicted. We therefore disagree with the Court of Appeals on the issue of whether Miller has shown any compromise of his right to be tried only on offenses for which a grand jury has returned an No such compromise has been shown. The judgment of the Court of Appeals is accordingly reversed. It is so ordered. JUSTICE POWELL took no part in the consideration or decision of this case.

Justice Marshall

dissenting

Illinois v. Rodriguez

https://www.courtlistener.com/opinion/112475/illinois-v-rodriguez/

https://www.courtlistener.com/api/rest/v3/clusters/112475/

1989-123

Dorothy Jackson summoned police officers to her house to report that her daughter Gail Fischer had been beaten. Fischer told police that Ed Rodriguez, her boyfriend, was her assaulter. During an interview with Fischer, one of the officers asked if Rodriguez dealt in narcotics. Fischer did not respond. Fischer did agree, however, to the officers' request to let them into Rodriguez's apartment so that they could arrest him for battery. The police, without a warrant and despite the absence of an exigency, entered Rodriguez's home to arrest him. As a result of their entry, the police discovered narcotics that the State subsequently sought to introduce in a drug prosecution against Rodriguez. The majority agrees with the Illinois Appellate Court's determination that Fischer did not have authority to consent to the officers' entry of Rodriguez's apartment. Ante, at 181-182. The Court holds that the warrantless entry into Rodriguez's home was nonetheless valid if the officers reasonably believed that Fischer had authority to consent. Ante this page. The majority's defense of this position rests on a misconception of the basis for third-party consent searches. That *190 such searches do not give rise to claims of constitutional violations rests not on the premise that they are "reasonable" under the Fourth Amendment, see ante, at 183-184, but on the premise that a person may voluntarily limit his expectation of privacy by allowing others to exercise authority over his possessions. Cf. Katz v. United States, 389 U.S. 347, 351 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection"). Thus, an individual's decision to permit another "joint access [to] or control [over the property] for most purposes," United States v. Matlock, 415 U.S. 164, 171, n. 7 (1974), limits that individual's reasonable expectation of privacy and to that extent limits his Fourth Amendment protections. Cf. Rakas v. Illinois, 439 U.S. 128, 148 (1978) (because passenger in car lacked "legitimate expectation of privacy in the glove compartment," Court did not decide whether search would violate Fourth Amendment rights of someone who had such expectation). If an individual has not so limited his expectation of privacy, the police may not dispense with the safeguards established by the Fourth Amendment. The baseline for the reasonableness of a search or seizure in the home is the presence of a warrant. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989). Indeed, "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980). Exceptions to the warrant requirement must therefore serve "compelling" law enforcement goals. Mincey v. Arizona, 437 U.S. 385, 394 (1978). Because the sole law enforcement purpose underlying third-party consent searches is avoiding the inconvenience of securing a warrant, a departure from the warrant requirement is not justified simply because an officer reasonably believes a third party has consented to a search of the defendant's home. In holding otherwise, the majority ignores our longstanding view that "the informed and deliberate determinations *191 of magistrates . . . as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests." United States v. Lefkowitz, 285 U.S. 452, 464 (1932). I The Fourth Amendment provides that "[t]he right of the people to be secure in their . . . houses . . . shall not be violated." We have recognized that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, Eastern District of Michigan, 407 U.S. 297, 313 (1972). We have further held that "a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 474 (1971). Those exceptions must be crafted in light of the warrant requirement's purposes. As this Court stated in McDonald v. United States, 335 U.S. 451 (1948): "The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals." Id., at 455-456. The Court has tolerated departures from the warrant requirement only when an exigency makes a warrantless search imperative to the safety of the police and of the community. See, e. g., id., at 456 ("We cannot be true to that *192 constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative"); Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); Chimel v. California, 395 U.S. 752 (1969) (interest in officers' safety justifies search incident to an arrest); Michigan v. Tyler, 436 U.S. 499, 509 (1978) ("compelling need for official action and no time to secure a warrant" justifies warrantless entry of burning building). The Court has often heard, and steadfastly rejected, the invitation to carve out further exceptions to the warrant requirement for searches of the home because of the burdens on police investigation and prosecution of crime. Our rejection of such claims is not due to a lack of appreciation of the difficulty and importance of effective law enforcement, but rather to our firm commitment to "the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law." Mincey, supra, at 393 (citing United States v. Chadwick, 433 U.S. 1, 6-11 (1977)). In the absence of an exigency, then, warrantless home searches and seizures are unreasonable under the Fourth Amendment. The weighty constitutional interest in preventing unauthorized intrusions into the home overrides any law enforcement interest in relying on the reasonable but potentially mistaken belief that a third party has authority to consent to such a search or seizure. Indeed, as the present case illustrates, only the minimal interest in avoiding the inconvenience of obtaining a warrant weighs in on the law enforcement side. Against this law enforcement interest in expediting arrests is "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511 (1961). To be sure, in some cases in which police officers reasonably rely on a *193 third party's consent, the consent will prove valid, no intrusion will result, and the police will have been spared the inconvenience of securing a warrant. But in other cases, such as this one, the authority claimed by the third party will be false. The reasonableness of police conduct must be measured in light of the possibility that the target has not consented. Where "[n]o reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate," the Constitution demands that the warrant procedure be observed. Johnson v. United States, 333 U.S. 10, 15 (1948). The concerns of expediting police work and avoiding paperwork "are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement." Ibid. In this case, as in Johnson, "[n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction . . . . If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required." Ibid. Unlike searches conducted pursuant to the recognized exceptions to the warrant requirement, see supra, at 191-192, third-party consent searches are not based on an exigency and therefore serve no compelling social goal. Police officers, when faced with the choice of relying on consent by a third party or securing a warrant, should secure a warrant and must therefore accept the risk of error should they instead choose to rely on consent. II Our prior cases discussing searches based on third-party consent have never suggested that such searches are "reasonable." In United States v. Matlock, this Court upheld a warrantless search conducted pursuant to the consent of a *194 third party who was living with the defendant. The Court rejected the defendant's challenge to the search, stating that a person who permits others to have "joint access or control for most purposes . . . assume[s] the risk that [such persons] might permit the common area to be searched." 415 U.S., at 171, n. 7; see also Frazier v. Cupp, 394 U.S. 731, 740 (1969) (holding that defendant who left a duffel bag at another's house and allowed joint use of the bag "assumed the risk that [the person] would allow someone else to look inside"). As the Court's assumption-of-risk analysis makes clear, third-party consent limits a person's ability to challenge the reasonableness of the search only because that person voluntarily has relinquished some of his expectation of privacy by sharing access or control over his property with another person. A search conducted pursuant to an officer's reasonable but mistaken belief that a third party had authority to consent is thus on an entirely different constitutional footing from one based on the consent of a third party who in fact has such authority. Even if the officers reasonably believed that Fischer had authority to consent, she did not, and Rodriguez's expectation of privacy was therefore undiminished. Rodriguez accordingly can challenge the warrantless intrusion into his home as a violation of the Fourth Amendment. This conclusion flows directly from Stoner v. California, 376 U.S. 483 (1964). There, the Court required the suppression of evidence seized in reliance on a hotel clerk's consent to a warrantless search of a guest's room. The Court reasoned that the guest's right to be free of unwarranted intrusion "was a right . . . which only [he] could waive by word or deed, either directly or through an agent." Id., at 489. Accordingly, the Court rejected resort to "unrealistic doctrines of `apparent authority'" as a means of upholding the search to which the guest had not consented. Id., at 488.[1] *195 III Acknowledging that the third party in this case lacked authority to consent, the majority seeks to rely on cases suggesting that reasonable but mistaken factual judgments by police will not invalidate otherwise reasonable searches. The majority reads these cases as establishing a "general rule" that "what is generally demanded of the many factual determinations that must regularly be made by agents of the government—whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the *196 warrant requirement—is not that they always be correct, but that they always be reasonable." Ante, at 185-186. The majority's assertion, however, is premised on the erroneous assumption that third-party consent searches are generally reasonable. The cases the majority cites thus provide no support for its holding. In Brinegar v. United States, 338 U.S. 160 (1949), for example, the Court confirmed the unremarkable proposition that police need only probable cause, not absolute certainty, to justify the arrest of a suspect on a highway. As Brinegar makes clear, the possibility of factual error is built into the probable cause standard, and such a standard, by its very definition, will in some cases result in the arrest of a suspect who has not actually committed a crime. Because probable cause defines the reasonableness of searches and seizures outside of the home, a search is reasonable under the Fourth Amendment whenever that standard is met, notwithstanding the possibility of "mistakes" on the part of police. Id., at 176. In contrast, our cases have already struck the balance against warrantless home intrusions in the absence of an exigency. See supra, at 191-192. Because reasonable factual errors by law enforcement officers will not validate unreasonable searches, the reasonableness of the officer's mistaken belief that the third party had authority to consent is irrelevant.[2] *197 The majority's reliance on Maryland v. Garrison, 480 U.S. 79 (1987), is also misplaced. In Garrison, the police obtained a valid warrant for the search of the "third floor apartment" of a building whose third floor in fact housed two apartments. Id., at 80. Although the police had probable cause to search only one of the apartments, they entered both apartments because "[t]he objective facts available to the officers at the time suggested no distinction between [the apartment for which they legitimately had the warrant and the entire third floor]." Id., at 88. The Court held that the officers' reasonable mistake of fact did not render the search unconstitutional. Id., at 88-89. As in Brinegar, the Court's decision was premised on the general reasonableness of the type of police action involved. Because searches based on warrants are generally reasonable, the officers' reasonable mistake of fact did not render their search "unreasonable." This reasoning is evident in the Court's conclusion that little would be gained by adopting additional burdens "over and above the bedrock requirement that, with the exceptions we have traced in our cases, the police may conduct searches only pursuant to a reasonably detailed warrant." Garrison, supra, at 89, n. 14. Garrison, like Brinegar, thus tells us nothing about the reasonableness under the Fourth Amendment of a warrantless arrest in the home based on an officer's reasonable but mistaken belief that the third party consenting to the arrest was empowered to do so. The majority's glib assertion that "[i]t would be superfluous to multiply" its citations to cases like Brinegar, Hill, and Garrison, ante, at 185, is thus correct, but for a reason entirely different than the majority suggests. Those cases provide no illumination of the issue raised in this case, and further citation to like cases would be *198 as superfluous as the discussion on which the majority's conclusion presently depends. IV Our cases demonstrate that third-party consent searches are free from constitutional challenge only to the extent that they rest on consent by a party empowered to do so. The majority's conclusion to the contrary ignores the legitimate expectations of privacy on which individuals are entitled to rely. That a person who allows another joint access to his property thereby limits his expectation of privacy does not justify trampling the rights of a person who has not similarly relinquished any of his privacy expectation. Instead of judging the validity of consent searches, as we have in the past, based on whether a defendant has in fact limited his expectation of privacy, the Court today carves out an additional exception to the warrant requirement for third-party consent searches without pausing to consider whether "`the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment," Mincey, 437 U. S., at 394 (citations omitted). Where this free-floating creation of "reasonable" exceptions to the warrant requirement will end, now that the Court has departed from the balancing approach that has long been part of our Fourth Amendment jurisprudence, is unclear. But by allowing a person to be subjected to a warrantless search in his home without his consent and without exigency, the majority has taken away some of the liberty that the Fourth Amendment was designed to protect.

Dorothy Jackson summoned police officers to her house to report that her daughter Gail Fischer had been beaten. Fischer told police that Ed Rodriguez, her boyfriend, was her assaulter. During an interview with Fischer, one of the officers asked if Rodriguez dealt in narcotics. Fischer did not respond. Fischer did agree, however, to the officers' request to let them into Rodriguez's apartment so that they could arrest him for battery. The police, without a warrant and despite the absence of an exigency, entered Rodriguez's home to arrest him. As a result of their entry, the police discovered narcotics that the State subsequently sought to introduce in a drug prosecution against Rodriguez. The majority agrees with the Illinois Appellate Court's determination that Fischer did not have authority to consent to the officers' entry of Rodriguez's apartment. Ante, at 181-182. The Court holds that the warrantless entry into Rodriguez's home was nonetheless valid if the officers reasonably believed that Fischer had authority to consent. Ante this page. The majority's defense of this position rests on a misconception of the basis for third-party consent searches. That *190 such searches do not give rise to claims of constitutional violations rests not on the premise that they are "reasonable" under the Fourth Amendment, see ante, at 183-184, but on the premise that a person may voluntarily limit his expectation of privacy by allowing others to exercise authority over his possessions. Cf. Thus, an individual's decision to permit another "joint access [to] or control [over the property] for most purposes," United limits that individual's reasonable expectation of privacy and to that extent limits his Fourth Amendment protections. Cf. If an individual has not so limited his expectation of privacy, the police may not dispense with the safeguards established by the Fourth Amendment. The baseline for the reasonableness of a search or seizure in the home is the presence of a warrant. Indeed, "searches and seizures inside a home without a warrant are presumptively unreasonable." Exceptions to the warrant requirement must therefore serve "compelling" law enforcement goals. Because the sole law enforcement purpose underlying third-party consent searches is avoiding the inconvenience of securing a warrant, a departure from the warrant requirement is not justified simply because an officer reasonably believes a third party has consented to a search of the defendant's home. In holding otherwise, the majority ignores our longstanding view that "the informed and deliberate determinations *191 of magistrates as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests." United I The Fourth Amendment provides that "[t]he right of the people to be secure in their houses shall not be violated." We have recognized that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United We have further held that "a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions." Those exceptions must be crafted in light of the warrant requirement's purposes. As this Court stated in : "The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals." The Court has tolerated departures from the warrant requirement only when an exigency makes a warrantless search imperative to the safety of the police and of the community. See, e. g., ; ; ; The Court has often heard, and steadfastly rejected, the invitation to carve out further exceptions to the warrant requirement for searches of the home because of the burdens on police investigation and prosecution of crime. Our rejection of such claims is not due to a lack of appreciation of the difficulty and importance of effective law enforcement, but rather to our firm commitment to "the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law." at 393 ). In the absence of an exigency, then, warrantless home searches and seizures are unreasonable under the Fourth Amendment. The weighty constitutional interest in preventing unauthorized intrusions into the home overrides any law enforcement interest in relying on the reasonable but potentially mistaken belief that a third party has authority to consent to such a search or seizure. Indeed, as the present case illustrates, only the minimal interest in avoiding the inconvenience of obtaining a warrant weighs in on the law enforcement side. Against this law enforcement interest in expediting arrests is "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." To be sure, in some cases in which police officers reasonably rely on a *193 third party's consent, the consent will prove valid, no intrusion will result, and the police will have been spared the inconvenience of securing a warrant. But in other cases, such as this one, the authority claimed by the third party will be false. The reasonableness of police conduct must be measured in light of the possibility that the target has not consented. Where "[n]o reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate," the Constitution demands that the warrant procedure be observed. The concerns of expediting police work and avoiding paperwork "are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement." In this case, as in Johnson, "[n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required." Unlike searches conducted pursuant to the recognized exceptions to the warrant requirement, see third-party consent searches are not based on an exigency and therefore serve no compelling social goal. Police officers, when faced with the choice of relying on consent by a third party or securing a warrant, should secure a warrant and must therefore accept the risk of error should they instead choose to rely on consent. II Our prior cases discussing searches based on third-party consent have never suggested that such searches are "reasonable." In United this Court upheld a warrantless search conducted pursuant to the consent of a *194 third party who was living with the defendant. The Court rejected the defendant's challenge to the search, stating that a person who permits others to have "joint access or control for most purposes assume[s] the risk that [such persons] might permit the common area to be searched." 4 U.S., at ; see also U.S. 731, As the Court's assumption-of-risk analysis makes clear, third-party consent limits a person's ability to challenge the reasonableness of the search only because that person voluntarily has relinquished some of his expectation of privacy by sharing access or control over his property with another person. A search conducted pursuant to an officer's reasonable but mistaken belief that a third party had authority to consent is thus on an entirely different constitutional footing from one based on the consent of a third party who in fact has such authority. Even if the officers reasonably believed that Fischer had authority to consent, she did not, and Rodriguez's expectation of privacy was therefore undiminished. Rodriguez accordingly can challenge the warrantless intrusion into his home as a violation of the Fourth Amendment. This conclusion flows directly from There, the Court required the suppression of evidence seized in reliance on a hotel clerk's consent to a warrantless search of a guest's room. The Court reasoned that the guest's right to be free of unwarranted intrusion "was a right which only [he] could waive by word or deed, either directly or through an agent." Accordingly, the Court rejected resort to "unrealistic doctrines of `apparent authority'" as a means of upholding the search to which the guest had not consented.[1] *195 III Acknowledging that the third party in this case lacked authority to consent, the majority seeks to rely on cases suggesting that reasonable but mistaken factual judgments by police will not invalidate otherwise reasonable searches. The majority reads these cases as establishing a "general rule" that "what is generally demanded of the many factual determinations that must regularly be made by agents of the government—whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the *196 warrant requirement—is not that they always be correct, but that they always be reasonable." Ante, at 185-186. The majority's assertion, however, is premised on the erroneous assumption that third-party consent searches are generally reasonable. The cases the majority cites thus provide no support for its holding. In for example, the Court confirmed the unremarkable proposition that police need only probable cause, not absolute certainty, to justify the arrest of a suspect on a highway. As Brinegar makes clear, the possibility of factual error is built into the probable cause standard, and such a standard, by its very definition, will in some cases result in the arrest of a suspect who has not actually committed a crime. Because probable cause defines the reasonableness of searches and seizures outside of the home, a search is reasonable under the Fourth Amendment whenever that standard is met, notwithstanding the possibility of "mistakes" on the part of police. In contrast, our cases have already struck the balance against warrantless home intrusions in the absence of an exigency. See Because reasonable factual errors by law enforcement officers will not validate unreasonable searches, the reasonableness of the officer's mistaken belief that the third party had authority to consent is irrelevant.[2] *197 The majority's reliance on is also misplaced. In Garrison, the police obtained a valid warrant for the search of the "third floor apartment" of a building whose third floor in fact housed two apartments. Although the police had probable cause to search only one of the apartments, they entered both apartments because "[t]he objective facts available to the officers at the time suggested no distinction between [the apartment for which they legitimately had the warrant and the entire third floor]." The Court held that the officers' reasonable mistake of fact did not render the search unconstitutional. -89. As in Brinegar, the Court's decision was premised on the general reasonableness of the type of police action involved. Because searches based on warrants are generally reasonable, the officers' reasonable mistake of fact did not render their search "unreasonable." This reasoning is evident in the Court's conclusion that little would be gained by adopting additional burdens "over and above the bedrock requirement that, with the exceptions we have traced in our cases, the police may conduct searches only pursuant to a reasonably detailed warrant." Garrison, Garrison, like Brinegar, thus tells us nothing about the reasonableness under the Fourth Amendment of a warrantless arrest in the home based on an officer's reasonable but mistaken belief that the third party consenting to the arrest was empowered to do so. The majority's glib assertion that "[i]t would be superfluous to multiply" its citations to cases like Brinegar, Hill, and Garrison, ante, at 185, is thus correct, but for a reason entirely different than the majority suggests. Those cases provide no illumination of the issue raised in this case, and further citation to like cases would be *198 as superfluous as the discussion on which the majority's conclusion presently depends. IV Our cases demonstrate that third-party consent searches are free from constitutional challenge only to the extent that they rest on consent by a party empowered to do so. The majority's conclusion to the contrary ignores the legitimate expectations of privacy on which individuals are entitled to rely. That a person who allows another joint access to his property thereby limits his expectation of privacy does not justify trampling the rights of a person who has not similarly relinquished any of his privacy expectation. Instead of judging the validity of consent searches, as we have in the past, based on whether a defendant has in fact limited his expectation of privacy, the Court today carves out an additional exception to the warrant requirement for third-party consent searches without pausing to consider whether "`the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment," 437 U. S., at Where this free-floating creation of "reasonable" exceptions to the warrant requirement will end, now that the Court has departed from the balancing approach that has long been part of our Fourth Amendment jurisprudence, is unclear. But by allowing a person to be subjected to a warrantless search in his home without his consent and without exigency, the majority has taken away some of the liberty that the Fourth Amendment was designed to protect.

Justice Stevens

concurring

United States v. Broce

https://www.courtlistener.com/opinion/112177/united-states-v-broce/

https://www.courtlistener.com/api/rest/v3/clusters/112177/

1988-027

While I join the Court's opinion, I write separately to identify the doubtful character of the basic premise on which respondents' double jeopardy claim rests. Respondents assume that their price-fixing activities in April 1978 and July 1979 were not separate crimes because they were carried out pursuant to an overarching conspiracy that had been in existence for more than 25 years. "A conspiracy is a partnership in criminal purposes." United States v. Kissel, 218 U.S. 601, 608 (1910). It "does not become several conspiracies because it continues over a period of time" or because it is an "agreement to commit several offenses." Braverman v. United States, 317 U.S. 49, 52 (1942). Thus, the continuous, cooperative effort among Kansas highway contractors to rig bids, which permeated the Kansas highway construction industry for more than 25 years, see ante, at 567, was unquestionably a single, continuing conspiracy that violated § 1 of the Sherman Act, 15 U.S. C. § 1. It does not necessarily follow, however, that separate bid-rigging arrangements carried out in furtherance of an illegal master plan may not be prosecuted separately. All of the elements of a Sherman Act violation were alleged in the indictment charging respondents with price fixing on the Kansas highway project bid on April 25, 1978. App. 143a-151a. The same is true with respect to the indictment relating to the second project, bid more than a year later and to be performed in a different county. Id., at 136a-142a. Each indictment alleged a separate crime. I am not at all sure that the fact that both may have been committed pursuant to still another continuing violation of the Sherman Act should bar separate prosecutions for each of those violations. There is something perverse in the assumption that respondents' constitutional rights may have been violated by separately prosecuting them for each of two complete and flagrant violations of the Sherman Act simply because they may also have been guilty of an ongoing and even more serious violation *581 of the same statute for more than a quarter of a century. Whether the law requires that all of these violations be merged into one is a question that need not be decided in this case. Yet I believe there is value in making it clear that the Court has not decided that question today.

While I join the Court's opinion, I write separately to identify the doubtful character of the basic premise on which respondents' double jeopardy claim rests. Respondents assume that their price-fixing activities in April 1978 and July 1979 were not separate crimes because they were carried out pursuant to an overarching conspiracy that had been in existence for more than 25 years. "A conspiracy is a partnership in criminal purposes." United It "does not become several conspiracies because it continues over a period of time" or because it is an "agreement to commit several offenses." Thus, the continuous, cooperative effort among Kansas highway contractors to rig bids, which permeated the Kansas highway construction industry for more than 25 years, see ante, at 567, was unquestionably a single, continuing conspiracy that violated 1 of the Sherman Act, 15 U.S. C. 1. It does not necessarily follow, however, that separate bid-rigging arrangements carried out in furtherance of an illegal master plan may not be prosecuted separately. All of the elements of a Sherman Act violation were alleged in the indictment charging respondents with price fixing on the Kansas highway project bid on April 25, 1978. App. 143a-151a. The same is true with respect to the indictment relating to the second project, bid more than a year later and to be performed in a different county. at 136a-142a. Each indictment alleged a separate crime. I am not at all sure that the fact that both may have been committed pursuant to still another continuing violation of the Sherman Act should bar separate prosecutions for each of those violations. There is something perverse in the assumption that respondents' constitutional rights may have been violated by separately prosecuting them for each of two complete and flagrant violations of the Sherman Act simply because they may also have been guilty of an ongoing and even more serious violation *581 of the same statute for more than a quarter of a century. Whether the law requires that all of these violations be merged into one is a question that need not be decided in this case. Yet I believe there is value in making it clear that the Court has not decided that question today.

Justice Scalia

majority

Coy v. Iowa

https://www.courtlistener.com/opinion/112146/coy-v-iowa/

https://www.courtlistener.com/api/rest/v3/clusters/112146/

1987-157

Appellant was convicted of two counts of lascivious acts with a child after a jury trial in which a screen placed between him and the two complaining witnesses blocked him from their sight. Appellant contends that this procedure, authorized by state statute, violated his Sixth Amendment right to confront the witnesses against him. I In August 1985, appellant was arrested and charged with sexually assaulting two 13-year-old girls earlier that month while they were camping out in the backyard of the house next door to him. According to the girls, the assailant entered their tent after they were asleep wearing a stocking over his head, shined a flashlight in their eyes, and warned them not to look at him; neither was able to describe his face. In November 1985, at the beginning of appellant's trial, the State made a motion pursuant to a recently enacted statute, Act of May 23, 1985, § 6, 1985 Iowa Acts 338, now codified at Iowa Code § 910A.14 (1987),[1] to allow the complaining witnesses to testify either via closed-circuit television or behind a screen. See App. 4-5. The trial court approved the use of a large screen to be placed between appellant and the witness stand during the girls' testimony. After certain lighting adjustments *1015 in the courtroom, the screen would enable appellant dimly to perceive the witnesses, but the witnesses to see him not at all. Appellant objected strenuously to use of the screen, based first of all on his Sixth Amendment confrontation right. He argued that, although the device might succeed in its apparent aim of making the complaining witnesses feel less uneasy in giving their testimony, the Confrontation Clause directly addressed this issue by giving criminal defendants a right to face-to-face confrontation. He also argued that his right to due process was violated, since the procedure would make him appear guilty and thus erode the presumption of innocence. The trial court rejected both constitutional claims, though it instructed the jury to draw no inference of guilt from the screen. The Iowa Supreme Court affirmed appellant's conviction, 397 N.W.2d 730 (1986). It rejected appellant's confrontation argument on the ground that, since the ability to cross-examine the witnesses was not impaired by the screen, there was no violation of the Confrontation Clause. It also rejected the due process argument, on the ground that the screening procedure was not inherently prejudicial. We noted probable jurisdiction, 483 U.S. 1019 (1987). II The Sixth Amendment gives a criminal defendant the right "to be confronted with the witnesses against him." This language "comes to us on faded parchment," California v. Green, 399 U.S. 149, 174 (1970) (Harlan, J., concurring), with a lineage that traces back to the beginnings of Western legal culture. There are indications that a right of confrontation existed under Roman law. The Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the *1016 charges." Acts 25:16. It has been argued that a form of the right of confrontation was recognized in England well before the right to jury trial. Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J. Pub. L. 381, 384-387 (1959). Most of this Court's encounters with the Confrontation Clause have involved either the admissibility of out-of-court statements, see, e. g., Ohio v. Roberts, 448 U.S. 56 (1980); Dutton v. Evans, 400 U.S. 74 (1970), or restrictions on the scope of cross-examination, Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308 (1974). Cf. Delaware v. Fensterer, 474 U.S. 15, 18-19 (1985) (per curiam) (noting these two categories and finding neither applicable). The reason for that is not, as the State suggests, that these elements are the essence of the Clause's protection — but rather, quite to the contrary, that there is at least some room for doubt (and hence litigation) as to the extent to which the Clause includes those elements, whereas, as Justice Harlan put it, "[s]imply as a matter of English" it confers at least "a right to meet face to face all those who appear and give evidence at trial." California v. Green, supra, at 175. Simply as a matter of Latin as well, since the word "confront" ultimately derives from the prefix "con-" (from "contra" meaning "against" or "opposed") and the noun "frons" (forehead). Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: "Then call them to our presence — face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak . . . ." Richard II, Act 1, sc. 1. We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. See Kentucky v. Stincer, 482 U.S. 730, 748, 749-750 (1987) (MARSHALL, J., dissenting). For example, in Kirby v. United States, 174 U.S. 47, 55 (1899), which concerned the admissibility of prior convictions of codefendants to prove an element of the offense *1017 of receiving stolen Government property, we described the operation of the Clause as follows: "[A] fact which can be primarily established only by witnesses cannot be proved against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases." Similarly, in Dowdell v. United States, 221 U.S. 325, 330 (1911), we described a provision of the Philippine Bill of Rights as substantially the same as the Sixth Amendment, and proceeded to interpret it as intended "to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination." More recently, we have described the "literal right to `confront' the witness at the time of trial" as forming "the core of the values furthered by the Confrontation Clause." California v. Green, supra, at 157. Last Term, the plurality opinion in Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987), stated that "[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." The Sixth Amendment's guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality. This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as "essential to a fair trial in a criminal prosecution." Pointer v. Texas, 380 U.S. 400, 404 (1965). What was true of old is no less true in modern times. President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas. In Abilene, he said, it was necessary to "[m]eet anyone face to face with whom you *1018 disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry. . . . In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow." Press release of remarks given to the B'nai B'rith Anti-Defamation League, November 23, 1953, quoted in Pollitt, supra, at 381. The phrase still persists, "Look me in the eye and say that." Given these human feelings of what is necessary for fairness,[2] the right of confrontation *1019 "contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails." Lee v. Illinois, 476 U.S. 530, 540 (1986). The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is." Z. Chafee, The Blessings of Liberty 35 (1956), quoted in Jay v. Boyd, 351 U.S. 345, 375-376 (1956), (Douglas, J., dissenting). It is always more difficult to tell a lie about a person "to his face" than "behind his back." In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss *1020 — the right to cross-examine the accuser; both "ensur[e] the integrity of the factfinding process." Kentucky v. Stincer, 482 U. S., at 736. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential "trauma" that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs. III The remaining question is whether the right to confrontation was in fact violated in this case. The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing appellant as they gave their testimony, and the record indicates that it was successful in this objective. App. 10-11. It is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter. The State suggests that the confrontation interest at stake here was outweighed by the necessity of protecting victims of sexual abuse. It is true that we have in the past indicated that rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests. The rights referred to in those cases, however, were not the right narrowly and explicitly set forth in the Clause, but rather rights that are, or were asserted to be, reasonably implicit — namely, the right to cross-examine, see Chambers v. Mississippi, 410 U.S. 284, 295 (1973); the right to exclude out-of-court statements, see Ohio v. Roberts, 448 U. S., at 63-65; and the asserted right to face-to-face confrontation at some point in the proceedings other than the trial itself, Kentucky v. Stincer, supra. To hold that our determination of what *1021 implications are reasonable must take into account other important interests is not the same as holding that we can identify exceptions, in light of other important interests, to the irreducible literal meaning of the Clause: "a right to meet face to face all those who appear and give evidence at trial." California v. Green, 399 U. S., at 175 (Harlan, J., concurring) (emphasis added). We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy. Cf. Ohio v. Roberts, supra, at 64; Chambers v. Mississippi, supra, at 295. The State maintains that such necessity is established here by the statute, which creates a legislatively imposed presumption of trauma. Our cases suggest, however, that even as to exceptions from the normal implications of the Confrontation Clause, as opposed to its most literal application, something more than the type of generalized finding underlying such a statute is needed when the exception is not "firmly . . . rooted in our jurisprudence." Bourjaily v. United States, 483 U.S. 171, 183 (1987) (citing Dutton v. Evans, 400 U.S. 74 (1970)). The exception created by the Iowa statute, which was passed in 1985, could hardly be viewed as firmly rooted. Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception. The State also briefly suggests that any Confrontation Clause error was harmless beyond a reasonable doubt under the standard of Chapman v. California, 386 U.S. 18, 24 (1967). We have recognized that other types of violations of the Confrontation Clause are subject to that harmless-error analysis, see e. g., Delaware v. Van Arsdall, 475 U. S., at 679, 684, and see no reason why denial of face-to-face confrontation should not be treated the same. An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the *1022 jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence. The Iowa Supreme Court had no occasion to address the harmlessness issue, since it found no constitutional violation. In the circumstances of this case, rather than decide whether the error was harmless beyond a reasonable doubt, we leave the issue for the court below. We find it unnecessary to reach appellant's due process claim. Since his constitutional right to face-to-face confrontation was violated, we reverse the judgment of the Iowa Supreme Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case.

Appellant was convicted of two counts of lascivious acts with a child after a jury trial in which a screen placed between him and the two complaining witnesses blocked him from their sight. Appellant contends that this procedure, authorized by state statute, violated his Sixth Amendment right to confront the witnesses against him. I In August 1985, appellant was arrested and charged with sexually assaulting two 13-year-old girls earlier that month while they were camping out in the backyard of the house next door to him. According to the girls, the assailant entered their tent after they were asleep wearing a stocking over his head, shined a flashlight in their eyes, and warned them not to look at him; neither was able to describe his face. In November 1985, at the beginning of appellant's trial, the State made a motion pursuant to a recently enacted statute, Act of May 23, 1985, 6, now codified at Iowa Code 910A.14[1] to allow the complaining witnesses to testify either via closed-circuit television or behind a screen. See App. 4-5. The trial court approved the use of a large screen to be placed between appellant and the witness stand during the girls' testimony. After certain lighting adjustments *1015 in the courtroom, the screen would enable appellant dimly to perceive the witnesses, but the witnesses to see him not at all. Appellant objected strenuously to use of the screen, based first of all on his Sixth Amendment confrontation right. He argued that, although the device might succeed in its apparent aim of making the complaining witnesses feel less uneasy in giving their testimony, the Confrontation Clause directly addressed this issue by giving criminal defendants a right to face-to-face confrontation. He also argued that his right to due process was violated, since the procedure would make him appear guilty and thus erode the presumption of innocence. The trial court rejected both constitutional claims, though it instructed the jury to draw no inference of guilt from the screen. The Iowa Supreme Court affirmed appellant's conviction, It rejected appellant's confrontation argument on the ground that, since the ability to cross-examine the witnesses was not impaired by the screen, there was no violation of the Confrontation Clause. It also rejected the due process argument, on the ground that the screening procedure was not inherently prejudicial. We noted probable jurisdiction, II The Sixth Amendment gives a criminal defendant the right "to be confronted with the witnesses against him." This language "comes to us on faded parchment," with a lineage that traces back to the beginnings of Western legal culture. There are indications that a right of confrontation existed under Roman law. The Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the *1016 charges." Acts 25:16. It has been argued that a form of the right of confrontation was recognized in England well before the right to jury trial. The Right of Confrontation: Its History and Modern Dress, 8 J. Pub. L. 381, 384-387 (1959). Most of this Court's encounters with the Confrontation Clause have involved either the admissibility of out-of-court statements, see, e. g., ; or restrictions on the scope of cross-examination, ; Cf. (noting these two categories and finding neither applicable). The reason for that is not, as the State suggests, that these elements are the essence of the Clause's protection — but rather, quite to the contrary, that there is at least some room for doubt (and hence litigation) as to the extent to which the Clause includes those elements, whereas, as Justice Harlan put it, "[s]imply as a matter of English" it confers at least "a right to meet face to face all those who appear and give evidence at trial." Simply as a matter of Latin as well, since the word "confront" ultimately derives from the prefix "con-" (from "contra" meaning "against" or "opposed") and the noun "frons" (forehead). Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: "Then call them to our presence — face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak" Richard II, Act 1, sc. 1. We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. See For example, in U.S. 47, which concerned the admissibility of prior convictions of codefendants to prove an element of the offense *1017 of receiving stolen Government property, we described the operation of the Clause as follows: "[A] fact which can be primarily established only by witnesses cannot be proved against an accused except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases." Similarly, in we described a provision of the Philippine Bill of Rights as substantially the same as the Sixth Amendment, and proceeded to interpret it as intended "to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination." More recently, we have described the "literal right to `confront' the witness at the time of trial" as forming "the core of the values furthered by the Confrontation Clause." Last Term, the plurality opinion in stated that "[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." The Sixth Amendment's guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality. This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as "essential to a fair trial in a criminal prosecution." What was true of old is no less true in modern times. President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas. In Abilene, he said, it was necessary to "[m]eet anyone face to face with whom you *1018 disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry. In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow." Press release of remarks given to the B'nai B'rith Anti-Defamation League, November 23, 1953, quoted in The phrase still persists, "Look me in the eye and say that." Given these human feelings of what is necessary for fairness,[2] the right of confrontation *1019 "contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails." The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is." Z. Chafee, The Blessings of Liberty 35 quoted in 3 U.S. 345, (Douglas, J., dissenting). It is always more difficult to tell a lie about a person "to his face" than "behind his back." In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss *1020 — the right to cross-examine the accuser; both "ensur[e] the integrity of the factfinding process." The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential "trauma" that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs. III The remaining question is whether the right to confrontation was in fact violated in this case. The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing appellant as they gave their testimony, and the record indicates that it was successful in this objective. App. 10-11. It is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter. The State suggests that the confrontation interest at stake here was outweighed by the necessity of protecting victims of sexual abuse. It is true that we have in the past indicated that rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests. The rights referred to in those cases, however, were not the right narrowly and explicitly set forth in the Clause, but rather rights that are, or were asserted to be, reasonably implicit — namely, the right to cross-examine, see ; the right to exclude out-of-court statements, see -65; and the asserted right to face-to-face confrontation at some point in the proceedings other than the trial itself, To hold that our determination of what *1021 implications are reasonable must take into account other important interests is not the same as holding that we can identify exceptions, in light of other important interests, to the irreducible literal meaning of the Clause: "a right to meet face to face all those who appear and give evidence at trial." 399 U. S., (emphasis added). We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy. Cf. ; at The State maintains that such necessity is established here by the statute, which creates a legislatively imposed presumption of trauma. Our cases suggest, however, that even as to exceptions from the normal implications of the Confrontation Clause, as opposed to its most literal application, something more than the type of generalized finding underlying such a statute is needed when the exception is not "firmly rooted in our jurisprudence." ). The exception created by the Iowa statute, which was passed in 1985, could hardly be viewed as firmly rooted. Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception. The State also briefly suggests that any Confrontation Clause error was harmless beyond a reasonable doubt under the standard of We have recognized that other types of violations of the Confrontation Clause are subject to that harmless-error analysis, see e. g., 684, and see no reason why denial of face-to-face confrontation should not be treated the same. An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the *1022 jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence. The Iowa Supreme Court had no occasion to address the harmlessness issue, since it found no constitutional violation. In the circumstances of this case, rather than decide whether the error was harmless beyond a reasonable doubt, we leave the issue for the court below. We find it unnecessary to reach appellant's due process claim. Since his constitutional right to face-to-face confrontation was violated, we reverse the judgment of the Iowa Supreme Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case.

Justice Stevens

majority

Community Television of Southern Cal. v. Gottfried

https://www.courtlistener.com/opinion/110830/community-television-of-southern-cal-v-gottfried/

https://www.courtlistener.com/api/rest/v3/clusters/110830/

1982-026

The question presented is whether § 504 of the Rehabilitation Act of 1973[1] requires the Federal Communications Commission to review a public television station's license renewal application under a different standard than it applies to a commercial licensee's renewal application. Contrary to the holding of the Court of Appeals for the District of Columbia Circuit, 210 U. S. App. D. C. 184, 655 F.2d 297 (1981), we conclude that it does not. I On October 28, 1977, respondent Sue Gottfried filed a formal petition with the Federal Communications Commission requesting it to deny renewal of the television license of station KCET-TV in Los Angeles. She advanced two principal grounds for denial: First, that the licensee had failed to discharge its obligation to ascertain the problems, needs, and interests of the deaf and hearing-impaired population within its service area; and second, that the licensee had *501 violated, and remained in violation of, § 504 of the Rehabilitation Act.[2] Correspondence attached to Gottfried's petition included complaints about KCET-TV's failure to carry enough programming with special captioning[3] or other aids to benefit the hearing-impaired members of the audience. The exhibits emphasized the station's failure to broadcast the ABC evening news in captioned form prior to May 23, 1977, and its subsequent failure to broadcast the captioned program during prime time. In a verified opposition to the petition, the licensee recounted in some detail its efforts to ascertain the problems of the community it served, including the deaf and the hearing impaired, by a community leader survey and by a general public survey. App. in No. 79-1722 (CADC), pp. 102-105. The licensee also described its programming efforts to respond to the special needs of the hearing impaired,[4] and *502 explained why its two daily broadcasts of the ABC captioned news had usually been scheduled for 11:30 p. m. and 6:30 a. m. The licensee specifically denied that it had violated § 504 and averred that the Commission is not an appropriate forum for the adjudication of Rehabilitation Act claims. Id., at 113. On December 22, 1977, Gottfried filed a verified response, criticizing the station's public survey, and commenting further on the station's failure to rebroadcast ABC captioned news programs before May 23, 1977. The response renewed the charge that the station had violated § 504,[5] and asserted that the Federal Communications Commission was indeed the proper forum to evaluate that charge.[6] *503 Gottfried also filed separate formal objections to the renewal of seven commercial television station licenses in the Los Angeles area. E. g., id., at 199. The Commission consolidated all eight proceedings and ruled on Gottfried's objections in a single memorandum opinion adopted on August 8, 1978. 69 F. C. C. 2d 451. The Commission first reviewed its own efforts to encourage the industry to serve the needs of the hearing impaired. In 1970, the Commission had issued a Public Notice to all licensees, advising them of the special needs of the deaf in responding to emergency situations as well as in appreciating general television programming.[7] In 1972, the Commission had granted authority to the Public Broadcasting System to begin experimentation with a "closed" captioning system, which would enable hearing-impaired persons with specially equipped television sets to receive captioned information that could not be seen by the remainder of the viewing audience.[8]*504 In 1976, the Commission had adopted a rule requiring television licensees to broadcast emergency information visually. In that year, however, the Commission had also concluded that there were so many unanswered questions — both technical and financial — concerning the most effective means of improving television service for the hearing impaired, that it remained "the responsibility of each licensee to determine how it [could] most effectively meet those needs."[9] The Commission summarized its views concerning mandated forms of technology by noting that "there is no requirement that any television licensee — commercial or noncommercial — provide open or closed captioning or any other form of special visual program material other than for broadcasting emergency information." Id., at 455. The Commission then turned to Gottfried's objections to the eight license renewals. It approached the question whether the renewals would serve the public interest, convenience, and necessity from three different perspectives: ascertainment, programming, and § 504 of the Rehabilitation Act. It first found that the licensees' efforts to ascertain the special needs of the community were adequate. Next, it held that the facts alleged by Gottfried did not give rise to a substantial and material question whether any of the eight stations had abused its discretion in its selection of programming matter. The Commission explained that it is more difficult to provide special programming for the hearing impaired than for other segments of the community;[10] in the *505 absence of any Commission requirement for specialized programming techniques, it found "no basis to fault a licensee for failure to provide these options for the deaf and hearing impaired in the station service area." Id., at 458. The Commission held that § 504 of the Rehabilitation Act had no application to the seven commercial licensees because they were not alleged to have received any federal financial assistance. The Commission agreed that KCET-TV might be governed by § 504, and that a violation of the Act would need to be considered in a license renewal proceeding, but it saw no reason to consider § 504 in the absence of an adverse finding by the Department of Health, Education, and Welfare — "the proper governmental agency to consider such matters." Id., at 459. On May 29, 1979, the Commission adopted a second memorandum opinion and order denying Gottfried's petition for reconsideration. 72 F. C. C. 2d 273. The Commission again reviewed Gottfried's § 504 charge and again concluded that the Rehabilitation Act does not apply to commercial stations and that the allegations against KCET-TV under that Act were premature unless and until the agency with authority to enforce compliance determined that the station had violated its provisions. The Commission also rejected Gottfried's additional argument that it had a duty to adopt regulations to implement § 504. Finally, the Commission refused to hold that either its omission of a rule requiring "captioning or other techniques to enable the deaf and hearing impaired to have full access to television broadcasts," or the failure of the licensees to provide such services, was a violation of the "public interest" standard embodied in § 309 of the Communications Act of 1934, as amended. The Commission held: *506 "We find no error and nothing inconsistent in concluding that licensees are serving the public interest although they are not currently providing captioning, in view of the fact that we have not required licensees to undertake such an activity. Furthermore, to judge a licensee's qualifications on the basis of the retroactive application of such a requirement would, in our opinion, raise serious questions of fundamental fairness. Thus, there is no inconsistency or error in our finding that the subject licensees had met their public interest burden even though they did not caption their programming." Id., at 279. Gottfried appealed the decision of the Commission to the Court of Appeals for the District of Columbia Circuit, pursuant to 47 U.S. C. § 402. The Court of Appeals affirmed the portion of the Commission's order that related to the commercial stations but vacated the renewal of the KCET-TV license and remanded for further proceedings. 210 U. S. App. D. C. 184, 655 F.2d 297 (1981). The court held that Congress did not intend the Commission's renewal of a broadcast license to be considered a form of "financial assistance" within the meaning of § 504 and therefore that the Rehabilitation Act did not directly apply to the seven commercial stations. The court was persuaded, however, that the Act reflected a national policy of extending increased opportunities to the hearing impaired and that commercial stations must therefore make some accommodation for the hard of hearing, given the Communications Act's general requirement that licensees serve the "public interest, convenience, and necessity." 47 U.S. C. §§ 307(d), 309(a), 309(d). In the absence of a more specific statutory directive than that contained in the public interest standard, however, the court accepted the Commission's judgment that the commercial licenses should be renewed. "Recognizing that the Commission possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace, we defer today *507 to its judgment." 210 U. S. App. D. C., at 202-203, 655 F.2d, at 315-316 (footnote omitted). The majority of the Court of Appeals reached a different conclusion with respect to KCET-TV. As a recipient of federal financial assistance, the public station was admittedly under a duty to comply with § 504. The Court of Appeals did not hold that KCET-TV had violated § 504, or that its efforts to provide programming for the hearing impaired were less satisfactory than the efforts of the commercial licensees; nevertheless, it held that a stricter "public interest" standard should be applied to a licensee covered by § 504 than to a commercial licensee. Its narrow holding was that the Commission could not find the service of public stations "to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired." Id., at 188, 655 F.2d, at 301. Judge McGowan dissented in part. He agreed with the majority's view concerning commercial stations that rulemaking would be "a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing," id., at 188, 203, 655 F.2d, at 301, 316, than case-by-case adjudication in license renewal proceedings. He felt, however, that the same standard should be applied to public stations until regulations had been issued by the Department of Education dealing specifically with the rights of access of the hearing impaired to television programs.[11] Judge McGowan stated: "[F]orm is favored over substance when commercial stations are, for this reason, spared the expense and uncertainty of renewal hearings, and a noncommercial station is not. Neither, on the record before us, had advance notice during their expired license terms of what was, and therefore could reasonably be, expected *508 of them with respect to the wholly laudable, but technically complex, objective of providing access for the hearing impaired." Id., at 204, 655 F.2d, at 317. Both the Commission and the licensee petitioned for certiorari. Because of the serious implications of the Court of Appeals' holding on the status of licenses of public broadcasting stations, we granted both petitions. 454 U.S. 1141 (1982). II All parties agree that the public interest would be served by making television broadcasting more available and more understandable to the substantial portion of our population that is handicapped by impaired hearing.[12] The Commission recognized this component of the public interest even before the enactment of the Rehabilitation Act of 1973, see The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 917 (1970), and that statute confirms the federal interest in developing the opportunities for all individuals with handicaps to live full and independent lives. No party suggests that a licensee, whether commercial or public, may simply ignore the needs of the hearing impaired in discharging its responsibilities to the community which it serves.[13] *509 We are not persuaded, however, that Congress intended the Rehabilitation Act of 1973 to impose any new enforcement obligation on the Federal Communications Commission.[14] As originally enacted, the Act did not expressly allocate enforcement responsibility. See Pub. L. 93-112, Tit. V, § 504, 87 Stat. 394. Nevertheless, since § 504 was patterned after Title VI of the Civil Rights Act of 1964, it was understood that responsibility for enforcing it, insofar as it regulated private recipients of federal funds, would lie with those agencies administering the federal financial assistance programs. See S. Rep. No. 93-1297, pp. 39-40 (1974). When the Act was amended in 1978, that understanding was made explicit. See Pub. L. 95-602, Tit. I, § 119, 92 Stat. 2982; n. 1, supra. It is clear that the Commission is not a funding agency and has never been thought to have responsibility for enforcing § 504.[15] Furthermore, there is not a *510 word in the legislative history of the Act suggesting that it was intended to alter the Commission's standard for reviewing the programming decisions of public television licensees. If a licensee should be found guilty of violating the Rehabilitation Act, or indeed of violating any other federal statute, the Commission would certainly be obligated to consider the possible relevance of such a violation in determining whether or not to renew the lawbreaker's license.[16] But in the absence of a direction in the Rehabilitation Act itself, and without any expression of such intent in the legislative history, we are unwilling to assume that Congress has instructed the Federal Communications Commission to take original jurisdiction over the processing of charges that its regulatees have violated that Act.[17] *511 The fact that a public television station has a duty to comply with the Rehabilitation Act does not support the quite different conclusion that the Commission must evaluate a public station's service to the handicapped community by a more stringent standard than that applicable to commercial stations. The interest in having all television stations — public and commercial — consider and serve their handicapped viewers is equally strong. By the same token, it is equally unfair to criticize a licensee — whether public or commercial — for failing to comply with a requirement of which it had no notice.[18] As both the majority and the dissenting judge in the Court of Appeals observed, rulemaking is generally a "better, fairer, and more effective" method of implementing a new industrywide policy than is the uneven application of conditions in isolated license renewal proceedings. That observation should be as determinative in relicensing a public station as it is in relicensing a commercial station. A federal agency providing financial assistance to a public television station may, of course, attach conditions to its subsidy *512 that will have the effect of subjecting such a licensee to more stringent requirements than must be met by a commercial licensee. Or regulations may be promulgated under the Rehabilitation Act that impose special obligations on the subsidized licensee. Conceivably, the Federal Communications Commission might determine that the policies underlying the Communications Act require extraordinary efforts to make certain types of programming universally accessible, thereby placing heightened responsibility on certain stations. But unless and until such a differential standard has been promulgated, the Federal Communications Commission does not abuse its discretion in interpreting the public interest standard, see FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981), when it declines to impose a greater obligation to provide special programming for the hearing impaired on a public licensee than on a commercial licensee.[19] The Court of Appeals was unanimous in its holding that the renewal of the seven commercial licensees was consistent with the public interest requirement in § 309 of the Federal Communications Act. Neither that court nor the Commission suggested that there was anything in the record that would justify treating the public licensee differently from the commercial licensees if both classes were to be judged under the same standard. The Court of Appeals' affirmance of the Commission's rejection of Gottfried's objection to the renewal of the commercial licenses therefore requires a like disposition of the objections to the renewal of the KCET-TV license. Accordingly, the judgment of the Court of Appeals is reversed insofar as it vacated the order of the Commission. It is so ordered.

The question presented is whether 504 of the Rehabilitation Act of 973[] requires the Federal Communications Commission to review a public television station's license renewal application under a different standard than it applies to a commercial licensee's renewal application. Contrary to the holding of the Court of Appeals for the District of Columbia Circuit, 20 U. S. App. D. C. 84, we conclude that it does not. I On October 28, 977, respondent Sue Gottfried filed a formal petition with the Federal Communications Commission requesting it to deny renewal of the television license of station KCET-TV in Los Angeles. She advanced two principal grounds for denial: First, that the licensee had failed to discharge its obligation to ascertain the problems, needs, and interests of the deaf and hearing-impaired population within its service area; and second, that the licensee had *50 violated, and remained in violation of, 504 of the Rehabilitation Act.[2] Correspondence attached to Gottfried's petition included complaints about KCET-TV's failure to carry enough programming with special captioning[3] or other aids to benefit the hearing-impaired members of the audience. The exhibits emphasized the station's failure to broadcast the ABC evening news in captioned form prior to May 23, 977, and its subsequent failure to broadcast the captioned program during prime time. In a verified opposition to the petition, the licensee recounted in some detail its efforts to ascertain the problems of the community it served, including the deaf and the hearing impaired, by a community leader survey and by a general public survey. App. in No. 79-722 (CADC), pp. 02-05. The licensee also described its programming efforts to respond to the special needs of the hearing impaired,[4] and *502 explained why its two daily broadcasts of the ABC captioned news had usually been scheduled for :30 p. m. and 6:30 a. m. The licensee specifically denied that it had violated 504 and averred that the Commission is not an appropriate forum for the adjudication of Rehabilitation Act claims. On December 22, 977, Gottfried filed a verified response, criticizing the station's public survey, and commenting further on the station's failure to rebroadcast ABC captioned news programs before May 23, 977. The response renewed the charge that the station had violated 504,[5] and asserted that the Federal Communications Commission was indeed the proper forum to evaluate that charge.[6] *503 Gottfried also filed separate formal objections to the renewal of seven commercial television station licenses in the Los Angeles area. E. g., The Commission consolidated all eight proceedings and ruled on Gottfried's objections in a single memorandum opinion adopted on August 8, 978. 69 F. C. C. 2d 45. The Commission first reviewed its own efforts to encourage the industry to serve the needs of the hearing impaired. In 970, the Commission had issued a Public Notice to all licensees, advising them of the special needs of the deaf in responding to emergency situations as well as in appreciating general television programming.[7] In 972, the Commission had granted authority to the Public Broadcasting System to begin experimentation with a "closed" captioning system, which would enable hearing-impaired persons with specially equipped television sets to receive captioned information that could not be seen by the remainder of the viewing audience.[8]*504 In 976, the Commission had adopted a rule requiring television licensees to broadcast emergency information visually. In that year, however, the Commission had also concluded that there were so many unanswered questions — both technical and financial — concerning the most effective means of improving television service for the hearing impaired, that it remained "the responsibility of each licensee to determine how it [could] most effectively meet those needs."[9] The Commission summarized its views concerning mandated forms of technology by noting that "there is no requirement that any television licensee — commercial or noncommercial — provide open or closed captioning or any other form of special visual program material other than for broadcasting emergency information." The Commission then turned to Gottfried's objections to the eight license renewals. It approached the question whether the renewals would serve the public interest, convenience, and necessity from three different perspectives: ascertainment, programming, and 504 of the Rehabilitation Act. It first found that the licensees' efforts to ascertain the special needs of the community were adequate. Next, it held that the facts alleged by Gottfried did not give rise to a substantial and material question whether any of the eight stations had abused its discretion in its selection of programming matter. The Commission explained that it is more difficult to provide special programming for the hearing impaired than for other segments of the community;[0] in the *505 absence of any Commission requirement for specialized programming techniques, it found "no basis to fault a licensee for failure to provide these options for the deaf and hearing impaired in the station service area." The Commission held that 504 of the Rehabilitation Act had no application to the seven commercial licensees because they were not alleged to have received any federal financial assistance. The Commission agreed that KCET-TV might be governed by 504, and that a violation of the Act would need to be considered in a license renewal proceeding, but it saw no reason to consider 504 in the absence of an adverse finding by the Department of Health, Education, and Welfare — "the proper governmental agency to consider such matters." On May 29, 979, the Commission adopted a second memorandum opinion and order denying Gottfried's petition for reconsideration. 72 F. C. C. 2d 273. The Commission again reviewed Gottfried's 504 charge and again concluded that the Rehabilitation Act does not apply to commercial stations and that the allegations against KCET-TV under that Act were premature unless and until the agency with authority to enforce compliance determined that the station had violated its provisions. The Commission also rejected Gottfried's additional argument that it had a duty to adopt regulations to implement 504. Finally, the Commission refused to hold that either its omission of a rule requiring "captioning or other techniques to enable the deaf and hearing impaired to have full access to television broadcasts," or the failure of the licensees to provide such services, was a violation of the "public interest" standard embodied in 309 of the Communications Act of 934, as amended. The Commission held: *506 "We find no error and nothing inconsistent in concluding that licensees are serving the public interest although they are not currently providing captioning, in view of the fact that we have not required licensees to undertake such an activity. Furthermore, to judge a licensee's qualifications on the basis of the retroactive application of such a requirement would, in our opinion, raise serious questions of fundamental fairness. Thus, there is no inconsistency or error in our finding that the subject licensees had met their public interest burden even though they did not caption their programming." Gottfried appealed the decision of the Commission to the Court of Appeals for the District of Columbia Circuit, pursuant to 47 U.S. C. 402. The Court of Appeals affirmed the portion of the Commission's order that related to the commercial stations but vacated the renewal of the KCET-TV license and remanded for further proceedings. 20 U. S. App. D. C. 84, The court held that Congress did not intend the Commission's renewal of a broadcast license to be considered a form of "financial assistance" within the meaning of 504 and therefore that the Rehabilitation Act did not directly apply to the seven commercial stations. The court was persuaded, however, that the Act reflected a national policy of extending increased opportunities to the hearing impaired and that commercial stations must therefore make some accommodation for the hard of hearing, given the Communications Act's general requirement that licensees serve the "public interest, convenience, and necessity." 47 U.S. C. 307(d), 309(a), 309(d). In the absence of a more specific statutory directive than that contained in the public interest standard, however, the court accepted the Commission's judgment that the commercial licenses should be renewed. "Recognizing that the Commission possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace, we defer today *507 to its judgment." 20 U. S. App. D. C., at 202-, -36 The majority of the Court of Appeals reached a different conclusion with respect to KCET-TV. As a recipient of federal financial assistance, the public station was admittedly under a duty to comply with 504. The Court of Appeals did not hold that KCET-TV had violated 504, or that its efforts to provide programming for the hearing impaired were less satisfactory than the efforts of the commercial licensees; nevertheless, it held that a stricter "public interest" standard should be applied to a licensee covered by 504 than to a commercial licensee. Its narrow holding was that the Commission could not find the service of public stations "to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired." Judge McGowan dissented in part. He agreed with the majority's view concerning commercial stations that rulemaking would be "a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing," 36, than case-by-case adjudication in license renewal proceedings. He felt, however, that the same standard should be applied to public stations until regulations had been issued by the Department of Education dealing specifically with the rights of access of the hearing impaired to television programs.[] Judge McGowan stated: "[F]orm is favored over substance when commercial stations are, for this reason, spared the expense and uncertainty of renewal hearings, and a noncommercial station is not. Neither, on the record before us, had advance notice during their expired license terms of what was, and therefore could reasonably be, expected *508 of them with respect to the wholly laudable, but technically complex, objective of providing access for the hearing impaired." Both the Commission and the licensee petitioned for certiorari. Because of the serious implications of the Court of Appeals' holding on the status of licenses of public broadcasting stations, we granted both petitions. II All parties agree that the public interest would be served by making television broadcasting more available and more understandable to the substantial portion of our population that is handicapped by impaired hearing.[2] The Commission recognized this component of the public interest even before the enactment of the Rehabilitation Act of 973, see The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 97 (970), and that statute confirms the federal interest in developing the opportunities for all individuals with handicaps to live full and independent lives. No party suggests that a licensee, whether commercial or public, may simply ignore the needs of the hearing impaired in discharging its responsibilities to the community which it serves.[3] *509 We are not persuaded, however, that Congress intended the Rehabilitation Act of 973 to impose any new enforcement obligation on the Federal Communications Commission.[4] As originally enacted, the Act did not expressly allocate enforcement responsibility. See Tit. V, 504, Nevertheless, since 504 was patterned after Title VI of the Civil Rights Act of 964, it was understood that responsibility for enforcing it, insofar as it regulated private recipients of federal funds, would lie with those agencies administering the federal financial assistance programs. See S. Rep. No. 93-297, pp. 39-40 (974). When the Act was amended in 978, that understanding was made explicit. See Tit. I, 9, ; n. It is clear that the Commission is not a funding agency and has never been thought to have responsibility for enforcing 504.[5] Furthermore, there is not a *50 word in the legislative history of the Act suggesting that it was intended to alter the Commission's standard for reviewing the programming decisions of public television licensees. If a licensee should be found guilty of violating the Rehabilitation Act, or indeed of violating any other federal statute, the Commission would certainly be obligated to consider the possible relevance of such a violation in determining whether or not to renew the lawbreaker's license.[6] But in the absence of a direction in the Rehabilitation Act itself, and without any expression of such intent in the legislative history, we are unwilling to assume that Congress has instructed the Federal Communications Commission to take original jurisdiction over the processing of charges that its regulatees have violated that Act.[7] *5 The fact that a public television station has a duty to comply with the Rehabilitation Act does not support the quite different conclusion that the Commission must evaluate a public station's service to the handicapped community by a more stringent standard than that applicable to commercial stations. The interest in having all television stations — public and commercial — consider and serve their handicapped viewers is equally strong. By the same token, it is equally unfair to criticize a licensee — whether public or commercial — for failing to comply with a requirement of which it had no notice.[8] As both the majority and the dissenting judge in the Court of Appeals observed, rulemaking is generally a "better, fairer, and more effective" method of implementing a new industrywide policy than is the uneven application of conditions in isolated license renewal proceedings. That observation should be as determinative in relicensing a public station as it is in relicensing a commercial station. A federal agency providing financial assistance to a public television station may, of course, attach conditions to its subsidy *52 that will have the effect of subjecting such a licensee to more stringent requirements than must be met by a commercial licensee. Or regulations may be promulgated under the Rehabilitation Act that impose special obligations on the subsidized licensee. Conceivably, the Federal Communications Commission might determine that the policies underlying the Communications Act require extraordinary efforts to make certain types of programming universally accessible, thereby placing heightened responsibility on certain stations. But unless and until such a differential standard has been promulgated, the Federal Communications Commission does not abuse its discretion in interpreting the public interest standard, see when it declines to impose a greater obligation to provide special programming for the hearing impaired on a public licensee than on a commercial licensee.[9] The Court of Appeals was unanimous in its holding that the renewal of the seven commercial licensees was consistent with the public interest requirement in 309 of the Federal Communications Act. Neither that court nor the Commission suggested that there was anything in the record that would justify treating the public licensee differently from the commercial licensees if both classes were to be judged under the same standard. The Court of Appeals' affirmance of the Commission's rejection of Gottfried's objection to the renewal of the commercial licenses therefore requires a like disposition of the objections to the renewal of the KCET-TV license. Accordingly, the judgment of the Court of Appeals is reversed insofar as it vacated the order of the Commission. It is so ordered.

Justice O'Connor

concurring

Bankers Life & Casualty Co. v. Crenshaw

https://www.courtlistener.com/opinion/112069/bankers-life-casualty-co-v-crenshaw/

https://www.courtlistener.com/api/rest/v3/clusters/112069/

1987-081

I do not agree with the Court's analysis of our jurisdiction over appellant's federal due process claim. I therefore do not join Part II or footnote 1 of the Court's opinion. I join the remainder of the opinion, and I agree with the analysis of Part II insofar as claims under the Excessive Fines Clause and Contract Clause are concerned. Moreover, for the reasons given below, I ultimately concur in the Court's judgment with respect to the due process claim as well. In its brief on appeal to the Mississippi Supreme Court, appellant expressly invoked the Due Process Clause of the Fourteenth Amendment and argued that Mississippi law chilled its fundamental right of access to the courts by authorizing unlimited punitive damages. App. to Juris. Statement 135a. The Court does not acknowledge this argument in its discussion of why the due process claim was not raised and passed upon below, but only notes that appellant did not present a due process argument clearly in its petition for rehearing. Ante, at 77. The Court suggests that it need not consider the due process argument raised in appellant's brief to the Mississippi Supreme Court because it is "distinct from the attack on the size of the particular award that appellant has waged before this Court." Ante, at 75, n. 1. Standing alone, this observation is insufficient to deprive this Court of jurisdiction over appellant's due process claim. "Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed." Dewey v. Des Moines, 173 U.S. 193, 197-198 (1899). See Illinois v. Gates, 462 U.S. 213, 248 (1983) (WHITE, J., concurring in judgment). *87 Accordingly, the Court should examine the federal due process argument that appellant makes in this Court to determine whether it is "only an enlargement" of the due process argument it raised below. See Dewey, supra, at 197. In its principal brief in this Court, appellant contends that the Mississippi Supreme Court changed its standard for judging when an insurer may be liable for punitive damages and applied the new standard retroactively to this case. Appellant explains that it therefore had no advance notice of what conduct could render it liable for punitive damages. Citing cases in which this Court has struck down criminal statutes as void for vagueness, e. g., Roberts v. United States Jaycees, 468 U.S. 609 (1984); Giaccio v. Pennsylvania, 382 U.S. 399 (1966), appellant maintains that this violated the Due Process Clause. Brief for Appellant 40-43. Then, in a supplemental brief filed after argument with the Court's leave, appellant expands the due process argument pressed below and mounts a more general attack on permitting juries to impose unlimited punitive damages on an ad hoc basis. Postargument Brief for Appellant 4-10. Appellant has touched on a due process issue that I think is worthy of the Court's attention in an appropriate case. Mississippi law gives juries discretion to award any amount of punitive damages in any tort case in which a defendant acts with a certain mental state. In my view, because of the punitive character of such awards, there is reason to think that this may violate the Due Process Clause. Punitive damages are awarded not to compensate for injury but, rather, "to punish reprehensible conduct and to deter its future occurrence." Gertz v. Welch, Inc., 418 U.S. 323, 350 (1974). Punitive damages are not measured against actual injury, so there is no objective standard that limits their amount. Hence, "the impact of these windfall recoveries is unpredictable and potentially substantial." Electrical Workers v. Foust, 442 U.S. 42, 50 (1979). For these reasons, the Court has forbidden the award of punitive damages *88 in defamation suits brought by private plaintiffs, Gertz, supra, at 349-350, and in unfair representation suits brought against unions under the Railway Labor Act, Electrical Workers, supra, at 52. For similar reasons, the Court should scrutinize carefully the procedures under which punitive damages are awarded in civil lawsuits. Under Mississippi law, the jury may award punitive damages for any common law tort committed with a certain mental state, that is, "for a willful and intentional wrong, or for such gross negligence and reckless negligence as is equivalent to such a wrong." 483 So. 2d 254, 269 (Miss. 1985) (opinion below). Although this standard may describe the required mental state with sufficient precision, the amount of the penalty that may ensue is left completely indeterminate. As the Mississippi Supreme Court said, "the determination of the amount of punitive damages is a matter committed solely to the authority and discretion of the jury." Id., at 278. This grant of wholly standardless discretion to determine the severity of punishment appears inconsistent with due process. The Court has recognized that "vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute." United States v. Batchelder, 442 U.S. 114, 123 (1979). Nothing in Mississippi law warned appellant that by committing a tort that caused $20,000 of actual damages, it could expect to incur a $1.6 million punitive damages award. This due process question, serious as it is, should not be decided today. The argument was not appellant's principal submission to this Court. The analysis in the briefs and the discussion at oral argument were correspondingly abbreviated. Although the Court could assert jurisdiction over the due process question on the theory that the argument made here was a "mere enlargement" of the due process argument raised below, it would not be prudent to do so. Accordingly, *89 I concur in the Court's judgment on this question and would leave for another day the consideration of these issues. JUSTICE SCALIA, concurring in part and concurring in the judgment. I join Part I (except for footnote 1) and Part III of the opinion of the Court, and concur in its judgment. As to Part II, I agree with JUSTICE WHITE that the question of our entertaining the issues there discussed should be resolved as a matter of law, and not of discretion, and I therefore join his opinion. The Court having chosen not to follow that course, I agree with JUSTICE O'CONNOR regarding the basis on which our discretion should be exercised concerning the due process claim, and therefore join her opinion. JUSTICE BLACKMUN, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion, for I agree that the Court should refrain from addressing appellant's challenge to the punitive damages awarded against it. I also agree with the Court's conclusion that appellant's challenge to Mississippi's "penalty statute," Miss. Code Ann. § 11-3-23 (Supp. 1987), is properly before the Court under its appellate jurisdiction. See 28 U.S. C. § 1257(2). Nonetheless, because I conclude that the statute cannot survive scrutiny under the Equal Protection Clause of the Fourteenth Amendment, I dissent from the Court's conclusion to the contrary. Section 11-3-23 " `is in the nature of a penalty, or a condition of appeal.' " Pearce v. Ford Motor Co., 235 So. 2d 281, 283 (Miss. 1970), quoting Meek v. Alexander, 137 Miss. 117, 121, 102 So. 69, 70 (1924). Not all unsuccessful appellants, however, are subject to its penalizing effect. The statute imposes lump-sum "damages." calculated at 15% of the value of the underlying judgment, on an appellant who unsuccessfully appeals to the Mississippi Supreme Court a money judgment *90 or possessory action.[1] Although the penalty applies to both the defendant and the prevailing but unsatisfied plaintiff who unsuccessfully appeals, it does not apply to the plaintiff who unsuccessfully appeals an adverse judgment or to the unsuccessful cross-appellant. There can be little doubt that this damages assessment burdens the statutory right of a litigant to appeal a money judgment. The statute makes it substantially more expensive to exercise the right if the judgment is ultimately affirmed, and it thereby obviously creates a disincentive to appeal.[2] The Court concludes that "the means chosen in § 11-3-23 are reasonably related to the achievement of the State's objectives of discouraging frivolous appeals, compensating appellees for the intangible costs of litigation, and conserving judicial resources." *91 Ante, at 85. In my view, the 15% automatic penalty provision is not at all "reasonably related" to any of these interests.[3] To the contrary, the relationship of the statutory classification of a money-judgment appellant to the asserted governmental goals "is so attenuated as to render the distinction arbitrary [and] irrational." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446 (1985). There is no rational relationship between the statute and the State's asserted desire to compensate a prevailing appellee for "having endured the slings and arrows of successful appellate litigation," Walters v. Inexco Oil Co., 440 So. 2d 268, 274-275 (Miss. 1983), whether the costs of that litigation are measured in economic or noneconomic terms. There is no reasonable justification for compensating only plaintiffs who prevail against an appeal. Defendants who have successfully defended in trial court against suits seeking money damages and who are subjected to appeals that prove unsuccessful are similarly burdened by the added emotional and financial costs of the appellate process. Yet, under the statute, they receive no "compensation" because the penalty is not imposed on nonprevailing plaintiffs who unsuccessfully appeal. The statute arbitrarily discriminates against defendant-appellants of money judgments, and the State offers no justification for the distinction so drawn. Not surprisingly, then, the Court makes no attempt to justify § 11-3-23 based upon the "compensation" objective, despite its reference to that state interest. Instead, it upholds the penalty statute as reasonably related to Mississippi's interest in discouraging frivolous appeals and thereby protecting the Mississippi Supreme Court "from being required to spend its time and energy and resources on appeals thoughtlessly taken." Walters v. Inexco Oil Co., 440 So. 2d, at 275. See ante, at 81-82. In Lindsey v. Normet, 405 U.S. 56 *92 (1972), the Court explained that a State might adopt "reasonable procedural provisions . . . to discourage patently insubstantial appeals, if these rules are reasonably tailored to achieve these ends and if they are uniformly and nondiscriminatorily applied." Id., at 78. But § 11-3-23 does not meet this standard. The penalty is neither applied in a uniform and nondiscriminatory manner, nor reasonably tailored to discourage "patently insubstantial appeals." Section 11-3-23 does not permit the Mississippi Supreme Court to determine whether an appeal is frivolous; the 15% penalty is imposed on certain unsuccessful appellants whenever the judgment is affirmed, regardless of the substantial merit of the appellant's case. Thus, even if, as in this very case, a money judgment is affirmed by a narrow 5-4 majority of the Supreme Court, the assessment automatically is made. Such a provision obviously sweeps substantial appeals as well as frivolous appeals within its deterrent net.[4] The claim that § 11-3-23 operates to screen out frivolous appeals is no more persuasive than was the same claim advanced in Lindsey in support of the Oregon double-bond requirement. This Court found the argument "unpersuasive" in Lindsey because the Oregon requirement "bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond." 405 U.S., at 78. Similarly, § 11-3-23 not only discourages nonfrivolous appeals by those who would avoid the risk of additional damages, but also allows meritless appeals by those who can afford to assume that risk. More strikingly, the statute allows an entirely frivolous appeal by a *93 nonprevailing plaintiff without the incursion of any risk of an appeal penalty. The Court provides no support for its conclusory assertion that Mississippi rationally concluded that the group of litigants susceptible to the penalty are those "most likely to be deterred from bringing meritless claims." Ante, at 84. At bottom, the majority's reasoning in sustaining Mississippi's mandatory penalty statute amounts to an assessment that § 11-3-23 applies to a larger group of appellants and burdens their right to appeal less heavily than the statute struck down by the Court on equal protection grounds in Lindsey. See ante, at 83-85. But Lindsey is not the benchmark by which we measure the constitutionality of a discriminatory state statute burdening the right to appeal. Each such statute must be justified by reference to the governmental objectives it purportedly seeks to further. Mississippi has failed to demonstrate that § 11-3-23 is rationally related to its stated goals. The discrimination against appellants from money judgments is arbitrary and irrational. Accordingly, the judgment of the Mississippi Supreme Court denying appellant's equal protection challenge to § 11-3-23 should be reversed. I dissent.

I do not agree with the Court's analysis of our jurisdiction over appellant's federal due process claim. I therefore do not join Part II or footnote 1 of the Court's opinion. I join the remainder of the opinion, and I agree with the analysis of Part II insofar as claims under the Excessive Fines Clause and Contract Clause are concerned. Moreover, for the reasons given below, I ultimately concur in the Court's judgment with respect to the due process claim as well. In its brief on appeal to the Mississippi Supreme Court, appellant expressly invoked the Due Process Clause of the Fourteenth Amendment and argued that Mississippi law chilled its fundamental right of access to the courts by authorizing unlimited punitive damages. App. to Juris. Statement 135a. The Court does not acknowledge this argument in its discussion of why the due process claim was not raised and passed upon below, but only notes that appellant did not present a due process argument clearly in its petition for rehearing. Ante, at 77. The Court suggests that it need not consider the due process argument raised in appellant's brief to the Mississippi Supreme Court because it is "distinct from the attack on the size of the particular award that appellant has waged before this Court." Ante, at 75, n. 1. Standing alone, this observation is insufficient to deprive this Court of jurisdiction over appellant's due process claim. "Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed." See *87 Accordingly, the Court should examine the federal due process argument that appellant makes in this Court to determine whether it is "only an enlargement" of the due process argument it raised below. See In its principal brief in this Court, appellant contends that the Mississippi Supreme Court changed its standard for judging when an insurer may be liable for punitive damages and applied the new standard retroactively to this case. Appellant explains that it therefore had no advance notice of what conduct could render it liable for punitive damages. Citing cases in which this Court has struck down criminal statutes as void for vagueness, e. g., ; appellant maintains that this violated the Due Process Clause. Brief for Appellant 40-43. Then, in a supplemental brief filed after argument with the Court's leave, appellant expands the due process argument pressed below and mounts a more general attack on permitting juries to impose unlimited punitive damages on an ad hoc basis. Postargument Brief for Appellant 4-10. Appellant has touched on a due process issue that I think is worthy of the Court's attention in an appropriate case. Mississippi law gives juries discretion to award any amount of punitive damages in any tort case in which a defendant acts with a certain mental state. In my view, because of the punitive character of such awards, there is reason to think that this may violate the Due Process Clause. Punitive damages are awarded not to compensate for injury but, rather, "to punish reprehensible conduct and to deter its future occurrence." Punitive damages are not measured against actual injury, so there is no objective standard that limits their amount. Hence, "the impact of these windfall recoveries is unpredictable and potentially substantial." Electrical For these reasons, the Court has forbidden the award of punitive damages *88 in defamation suits brought by private plaintiffs, at 349-, and in unfair representation suits brought against unions under the Railway Labor Act, Electrical For similar reasons, the Court should scrutinize carefully the procedures under which punitive damages are awarded in civil lawsuits. Under Mississippi law, the jury may award punitive damages for any common law tort committed with a certain mental state, that is, "for a willful and intentional wrong, or for such gross negligence and reckless negligence as is equivalent to such a wrong." Although this standard may describe the required mental state with sufficient precision, the amount of the penalty that may ensue is left completely indeterminate. As the Mississippi Supreme Court said, "the determination of the amount of punitive damages is a matter committed solely to the authority and discretion of the jury." This grant of wholly standardless discretion to determine the severity of punishment appears inconsistent with due process. The Court has recognized that "vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute." United Nothing in Mississippi law warned appellant that by committing a tort that caused $20,000 of actual damages, it could expect to incur a $1.6 million punitive damages award. This due process question, serious as it is, should not be decided today. The argument was not appellant's principal submission to this Court. The analysis in the briefs and the discussion at oral argument were correspondingly abbreviated. Although the Court could assert jurisdiction over the due process question on the theory that the argument made here was a "mere enlargement" of the due process argument raised below, it would not be prudent to do so. Accordingly, *89 I concur in the Court's judgment on this question and would leave for another day the consideration of these issues. JUSTICE SCALIA, concurring in part and concurring in the judgment. I join Part I (except for footnote 1) and Part III of the opinion of the Court, and concur in its judgment. As to Part II, I agree with JUSTICE WHITE that the question of our entertaining the issues there discussed should be resolved as a matter of law, and not of discretion, and I therefore join his opinion. The Court having chosen not to follow that course, I agree with JUSTICE O'CONNOR regarding the basis on which our discretion should be exercised concerning the due process claim, and therefore join her opinion. JUSTICE BLACKMUN, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion, for I agree that the Court should refrain from addressing appellant's challenge to the punitive damages awarded against it. I also agree with the Court's conclusion that appellant's challenge to Mississippi's "penalty statute," (Supp. 1987), is properly before the Court under its appellate jurisdiction. See 28 U.S. C. 1257(2). Nonetheless, because I conclude that the statute cannot survive scrutiny under the Equal Protection Clause of the Fourteenth Amendment, I dissent from the Court's conclusion to the contrary. Section 11-3-23 " `is in the nature of a penalty, or a condition of appeal.' " quoting Not all unsuccessful appellants, however, are subject to its penalizing effect. The statute imposes lump-sum "damages." calculated at 15% of the value of the underlying judgment, on an appellant who unsuccessfully appeals to the Mississippi Supreme Court a money judgment *90 or possessory action.[1] Although the penalty applies to both the defendant and the prevailing but unsatisfied plaintiff who unsuccessfully appeals, it does not apply to the plaintiff who unsuccessfully appeals an adverse judgment or to the unsuccessful cross-appellant. There can be little doubt that this damages assessment burdens the statutory right of a litigant to appeal a money judgment. The statute makes it substantially more expensive to exercise the right if the judgment is ultimately affirmed, and it thereby obviously creates a disincentive to appeal.[2] The Court concludes that "the means chosen in 11-3-23 are reasonably related to the achievement of the State's objectives of discouraging frivolous appeals, compensating appellees for the intangible costs of litigation, and conserving judicial resources." *91 Ante, at 85. In my view, the 15% automatic penalty provision is not at all "reasonably related" to any of these interests.[3] To the contrary, the relationship of the statutory classification of a money-judgment appellant to the asserted governmental goals "is so attenuated as to render the distinction arbitrary [and] irrational." There is no rational relationship between the statute and the State's asserted desire to compensate a prevailing appellee for "having endured the slings and arrows of successful appellate litigation," whether the costs of that litigation are measured in economic or noneconomic terms. There is no reasonable justification for compensating only plaintiffs who prevail against an appeal. Defendants who have successfully defended in trial court against suits seeking money damages and who are subjected to appeals that prove unsuccessful are similarly burdened by the added emotional and financial costs of the appellate process. Yet, under the statute, they receive no "compensation" because the penalty is not imposed on nonprevailing plaintiffs who unsuccessfully appeal. The statute arbitrarily discriminates against defendant-appellants of money judgments, and the State offers no justification for the distinction so drawn. Not surprisingly, then, the Court makes no attempt to justify 11-3-23 based upon the "compensation" objective, despite its reference to that state interest. Instead, it upholds the penalty statute as reasonably related to Mississippi's interest in discouraging frivolous appeals and thereby protecting the Mississippi Supreme Court "from being required to spend its time and energy and resources on appeals thoughtlessly taken." See ante, at 81-82. In the Court explained that a State might adopt "reasonable procedural provisions to discourage patently insubstantial appeals, if these rules are reasonably tailored to achieve these ends and if they are uniformly and nondiscriminatorily applied." But 11-3-23 does not meet this standard. The penalty is neither applied in a uniform and nondiscriminatory manner, nor reasonably tailored to discourage "patently insubstantial appeals." Section 11-3-23 does not permit the Mississippi Supreme Court to determine whether an appeal is frivolous; the 15% penalty is imposed on certain unsuccessful appellants whenever the judgment is affirmed, regardless of the substantial merit of the appellant's case. Thus, even if, as in this very case, a money judgment is affirmed by a narrow 5-4 majority of the Supreme Court, the assessment automatically is made. Such a provision obviously sweeps substantial appeals as well as frivolous appeals within its deterrent net.[4] The claim that 11-3-23 operates to screen out frivolous appeals is no more persuasive than was the same claim advanced in Lindsey in support of the Oregon double-bond requirement. This Court found the argument "unpersuasive" in Lindsey because the Oregon requirement "bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond." 405 U.S., Similarly, 11-3-23 not only discourages nonfrivolous appeals by those who would avoid the risk of additional damages, but also allows meritless appeals by those who can afford to assume that risk. More strikingly, the statute allows an entirely frivolous appeal by a *93 nonprevailing plaintiff without the incursion of any risk of an appeal penalty. The Court provides no support for its conclusory assertion that Mississippi rationally concluded that the group of litigants susceptible to the penalty are those "most likely to be deterred from bringing meritless claims." Ante, at 84. At bottom, the majority's reasoning in sustaining Mississippi's mandatory penalty statute amounts to an assessment that 11-3-23 applies to a larger group of appellants and burdens their right to appeal less heavily than the statute struck down by the Court on equal protection grounds in Lindsey. See ante, at 83-85. But Lindsey is not the benchmark by which we measure the constitutionality of a discriminatory state statute burdening the right to appeal. Each such statute must be justified by reference to the governmental objectives it purportedly seeks to further. Mississippi has failed to demonstrate that 11-3-23 is rationally related to its stated goals. The discrimination against appellants from money judgments is arbitrary and irrational. Accordingly, the judgment of the Mississippi Supreme Court denying appellant's equal protection challenge to 11-3-23 should be reversed. I dissent.

Justice Alito

majority

Ohio v. Clark

https://www.courtlistener.com/opinion/2809764/ohio-v-clark/

https://www.courtlistener.com/api/rest/v3/clusters/2809764/

2014-049

Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town. A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser. The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be cross- examined. Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial. I Darius Clark, who went by the nickname “Dee,” lived in Cleveland, Ohio, with his girlfriend, T. T., and her two children: L. P., a 3-year-old boy, and A. T., an 18-month- old girl.1 Clark was also T. T.’s pimp, and he would regu- larly send her on trips to Washington, D. C., to work as a prostitute. In March 2010, T. T. went on one such trip, —————— 1 Like the Ohio courts, we identify Clark’s victims and their mother by their initials. 2 OHIO v. CLARK Opinion of the Court and she left the children in Clark’s care. The next day, Clark took L. P. to preschool. In the lunchroom, one of L. P.’s teachers, Ramona Whitley, ob- served that L. P.’s left eye appeared bloodshot. She asked him “ ‘[w]hat happened,’ ” and he initially said nothing. 137 Ohio St. 3d 346, 347, 2013–Ohio–4731, 999 N.E.2d 592, 594. Eventually, however, he told the teacher that he “ ‘fell.’ ” Ibid. When they moved into the brighter lights of a classroom, Whitley noticed “ ‘[r]ed marks, like whips of some sort,’ ” on L. P.’s face. Ibid. She notified the lead teacher, Debra Jones, who asked L. P., “ ‘Who did this? What happened to you?’ ” Id., at 348, 999 N. E. 2d, at 595. According to Jones, L. P. “ ‘seemed kind of bewildered’ ” and “ ‘said something like, Dee, Dee.’ ” Ibid. Jones asked L. P. whether Dee is “big or little,” to which L. P. responded that “Dee is big.” App. 60, 64. Jones then brought L. P. to her supervisor, who lifted the boy’s shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the suspected abuse. When Clark later arrived at the school, he denied re- sponsibility for the injuries and quickly left with L. P. The next day, a social worker found the children at Clark’s mother’s house and took them to a hospital, where a phy- sician discovered additional injuries suggesting child abuse. L. P. had a black eye, belt marks on his back and stomach, and bruises all over his body. A. T. had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair. A grand jury indicted Clark on five counts of felonious assault (four related to A. T. and one related to L. P.), two counts of endangering children (one for each child), and two counts of domestic violence (one for each child). At trial, the State introduced L. P.’s statements to his teach- ers as evidence of Clark’s guilt, but L. P. did not testify. Under Ohio law, children younger than 10 years old are Cite as: 576 U. S. ____ (2015) 3 Opinion of the Court incompetent to testify if they “appear incapable of receiv- ing just impressions of the facts and transactions respect- ing which they are examined, or of relating them truly.” Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a hearing, the trial court concluded that L. P. was not com- petent to testify. But under Ohio Rule of Evidence 807, which allows the admission of reliable hearsay by child abuse victims, the court ruled that L. P.’s statements to his teachers bore sufficient guarantees of trustworthiness to be admitted as evidence. Clark moved to exclude testimony about L. P.’s out-of- court statements under the Confrontation Clause. The trial court denied the motion, ruling that L. P.’s responses were not testimonial statements covered by the Sixth Amendment. The jury found Clark guilty on all counts except for one assault count related to A. T., and it sen- tenced him to 28 years’ imprisonment. Clark appealed his conviction, and a state appellate court reversed on the ground that the introduction of L. P.’s out-of-court state- ments violated the Confrontation Clause. In a 4-to-3 decision, the Supreme Court of Ohio af- firmed. It held that, under this Court’s Confrontation Clause decisions, L. P.’s statements qualified as testimo- nial because the primary purpose of the teachers’ ques- tioning “was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subse- quent criminal prosecution.” 137 Ohio St. 3d, at 350, 999 N. E. 2d, at 597. The court noted that Ohio has a “manda- tory reporting” law that requires certain professionals, including preschool teachers, to report suspected child abuse to government authorities. See id., at 349–350, 999 N. E. 2d, at 596–597. In the court’s view, the teachers acted as agents of the State under the mandatory report- ing law and “sought facts concerning past criminal activity to identify the person responsible, eliciting statements that ‘are functionally identical to live, in-court testimony, 4 OHIO v. CLARK Opinion of the Court doing precisely what a witness does on direct examina- tion.’ ” Id., at 355, 999 N. E. 2d, at 600 (quoting Melendez- Diaz v. Massachusetts, 557 U.S. 305, 310–311 (2009); some internal quotation marks omitted). We granted certiorari, 573 U. S. ___ (2014), and we now reverse. II A The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amend- ment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the wit- nesses against him.” In Ohio v. Roberts, 448 U.S. 56, 66 (1980), we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore “adequate ‘indicia of reliabil- ity.’ ” Such indicia are present, we held, if “the evidence falls within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Ibid. In Crawford v. Washington, 541 U.S. 36 (2004), we adopted a different approach. We explained that “wit- nesses,” under the Confrontation Clause, are those “who bear testimony,” and we defined “testimony” as “a solemn declaration or affirmation made for the purpose of estab- lishing or proving some fact.” Id., at 51 (internal quota- tion marks and alteration omitted). The Sixth Amend- ment, we concluded, prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id., at 54. Applying that definition to the facts in Crawford, we held that statements by a witness during police question- ing at the station house were testimonial and thus could not be admitted. But our decision in Crawford did not offer an exhaustive definition of “testimonial” statements. Cite as: 576 U. S. ____ (2015) 5 Opinion of the Court Instead, Crawford stated that the label “applies at a min- imum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interroga- tions.” Id., at 68. Our more recent cases have labored to flesh out what it means for a statement to be “testimonial.” In Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), which we decided together, we dealt with state- ments given to law enforcement officers by the victims of domestic abuse. The victim in Davis made statements to a 911 emergency operator during and shortly after her boyfriend’s violent attack. In Hammon, the victim, after being isolated from her abusive husband, made state- ments to police that were memorialized in a “ ‘battery affidavit.’ ” Id., at 820. We held that the statements in Hammon were testimo- nial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the cir- cumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events poten- tially relevant to later criminal prosecution.” Id., at 822. Because the cases involved statements to law enforcement officers, we reserved the question whether similar state- ments to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause. See id., at 823, n. 2. In Michigan v. Bryant, 562 U.S. 344 (2011), we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circum- stances.” Id., at 369. And we reiterated our view in Davis 6 OHIO v. CLARK Opinion of the Court that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.” 562 U.S., at 358. At the same time, we noted that “there may be other circum- stances, aside from ongoing emergencies, when a state- ment is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Ibid. “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Id., at 374. Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” Id., at 366. One additional factor is “the informality of the situation and the interrogation.” Id., at 377. A “formal station- house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary pur- pose aimed at obtaining testimonial evidence against the accused. Id., at 366, 377. And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” Id., at 358–359. In the end, the question is whether, in light of all the circumstances, viewed objec- tively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” Id., at 358. Applying these principles in Bryant, we held that the statements made by a dying victim about his assailant were not testimonial because the circumstances objectively indicated that the conversation was primarily aimed at quelling an ongoing emergency, not establishing evidence for the prosecution. Because the relevant state- ments were made to law enforcement officers, we again declined to decide whether the same analysis applies to statements made to individuals other than the police. See id., at 357, n. 3. Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary pur- pose was testimonial. “Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id., at 359. But that does not mean that the Confrontation Clause bars every statement that satisfies the “primary purpose” test. We have recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. See Giles v. California, 554 U.S. 353, 358–359 (2008); Crawford, 541 U.S., at 56, n. 6, 62. Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confronta- tion Clause. B In this case, we consider statements made to preschool teachers, not the police. We are therefore presented with the question we have repeatedly reserved: whether state- ments to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforce- ment officers could conceivably raise confrontation con- cerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And consid- ering all the relevant circumstances here, L. P.’s state- ments clearly were not made with the primary purpose of creating evidence for Clark’s prosecution. Thus, their introduction at trial did not violate the Confrontation Clause. L. P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. When L. P.’s 8 OHIO v. CLARK Opinion of the Court teachers noticed his injuries, they rightly became worried that the 3-year-old was the victim of serious violence. Because the teachers needed to know whether it was safe to release L. P. to his guardian at the end of the day, they needed to determine who might be abusing the child.2 Thus, the immediate concern was to protect a vulnerable child who needed help. Our holding in Bryant is instruc- tive. As in Bryant, the emergency in this case was ongo- ing, and the circumstances were not entirely clear. L. P.’s teachers were not sure who had abused him or how best to secure his safety. Nor were they sure whether any other children might be at risk. As a result, their questions and L. P.’s answers were primarily aimed at identifying and ending the threat. Though not as harried, the conversa- tion here was also similar to the 911 call in Davis. The teachers’ questions were meant to identify the abuser in order to protect the victim from future attacks. Whether the teachers thought that this would be done by appre- hending the abuser or by some other means is irrelevant. And the circumstances in this case were unlike the inter- rogation in Hammon, where the police knew the identity of the assailant and questioned the victim after shielding her from potential harm. There is no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecu- tion. On the contrary, it is clear that the first objective was to protect L. P. At no point did the teachers inform L. P. that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his state- ments to be used by the police or prosecutors. And the —————— 2 In fact, the teachers and a social worker who had come to the school were reluctant to release L. P. into Clark’s care after the boy identified Clark as his abuser. But after a brief “stare-down” with the social worker, Clark bolted out the door with L. P., and social services were not able to locate the children until the next day. App. 92–102, 150– 151. Cite as: 576 U. S. ____ (2015) 9 Opinion of the Court conversation between L. P. and his teachers was informal and spontaneous. The teachers asked L. P. about his injuries immediately upon discovering them, in the infor- mal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse. This was nothing like the formalized station-house questioning in Crawford or the police interrogation and battery affidavit in Hammon. L. P.’s age fortifies our conclusion that the statements in question were not testimonial. Statements by very young children will rarely, if ever, implicate the Confrontation Clause. Few preschool students understand the details of our criminal justice system. Rather, “[r]esearch on chil- dren’s understanding of the legal system finds that” young children “have little understanding of prosecution.” Brief for American Professional Society on the Abuse of Chil- dren as Amicus Curiae 7, and n. 5 (collecting sources). And Clark does not dispute those findings. Thus, it is extremely unlikely that a 3-year-old child in L. P.’s posi- tion would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all. As a historical matter, moreover, there is strong evi- dence that statements made in circumstances similar to those facing L. P. and his teachers were admissible at common law. See Lyon & LaMagna, The History of Chil- dren’s Hearsay: From Old Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030 (2007); see also id., at 1041–1044 (exam- ining child rape cases from 1687 to 1788); J. Langbein, The Origins of Adversary Criminal Trial 239 (2003) (“The Old Bailey” court in 18th-century London “tolerated fla- grant hearsay in rape prosecutions involving a child victim who was not competent to testify because she was too 10 OHIO v. CLARK Opinion of the Court young to appreciate the significance of her oath”). And when 18th-century courts excluded statements of this sort, see, e.g., King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (K. B. 1779), they appeared to do so because the child should have been ruled competent to testify, not because the statements were otherwise inadmissible. See Lyon & LaMagna, supra, at 1053–1054. It is thus highly doubtful that statements like L. P.’s ever would have been under- stood to raise Confrontation Clause concerns. Neither Crawford nor any of the cases that it has produced has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding. Certainly, the statements in this case are nothing like the notorious use of ex parte examination in Sir Walter Raleigh’s trial for treason, which we have frequently identified as “the principal evil at which the Confrontation Clause was directed.” Crawford, 541 U.S., at 50; see also Bryant, 562 U.S., at 358. Finally, although we decline to adopt a rule that state- ments to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L. P. was speaking to his teachers remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner’s iden- tity. See id., at 369. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testi- monial than statements given to law enforcement officers. See, e.g., Giles, 554 U.S., at 376. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police. We do not ignore that reality. In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial. Cite as: 576 U. S. ____ (2015) 11 Opinion of the Court III Clark’s efforts to avoid this conclusion are all off-base. He emphasizes Ohio’s mandatory reporting obligations, in an attempt to equate L. P.’s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers’ pressing concern was to protect L. P. and remove him from harm’s way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution. It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. The statements at issue in Davis and Bryant supported the defendants’ convictions, and the police always have an obligation to ask questions to resolve ongoing emergencies. Yet, we held in those cases that the Confrontation Clause did not prohibit in- troduction of the statements because they were not pri- marily intended to be testimonial. Thus, Clark is also wrong to suggest that admitting L. P.’s statements would be fundamentally unfair given that Ohio law does not allow incompetent children to testify. In any Confronta- tion Clause case, the individual who provided the out-of- court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt. The fact that the witness is unavailable because of a dif- ferent rule of evidence does not change our analysis. Finally, Clark asks us to shift our focus from the context of L. P.’s conversation with his teachers to the jury’s per- ception of those statements. Because, in his view, the “jury treated L. P.’s accusation as the functional equiva- lent of testimony,” Clark argues that we must prohibit its 12 OHIO v. CLARK Opinion of the Court introduction. Brief for Respondent 42. Our Confrontation Clause decisions, however, do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony. The logic of this argument, moreover, would lead to the conclusion that virtually all out-of-court state- ments offered by the prosecution are testimonial. The prosecution is unlikely to offer out-of-court statements unless they tend to support the defendant’s guilt, and all such statements could be viewed as a substitute for in- court testimony. We have never suggested, however, that the Confrontation Clause bars the introduction of all out- of-court statements that support the prosecution’s case. Instead, we ask whether a statement was given with the “primary purpose of creating an out-of-court substitute for trial testimony.” Bryant, supra, at 358. Here, the an- swer is clear: L. P.’s statements to his teachers were not testimonial. IV We reverse the judgment of the Supreme Court of Ohio and remand the case for further proceedings not incon- sistent with this opinion. It is so ordered. Cite as: 576 U. S. ____ (2015) 1 SCALIA, J., concurring in judgment NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash­ ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 13–1352 _________________ OHIO, PETITIONER v. DARIUS CLARK ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO [June 18, 2015] JUSTICE SCALIA, with whom JUSTICE GINSBURG joins, concurring in the judgment.

Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town. A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser. The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be cross- examined. Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial. I Darius Clark, who went by the nickname “Dee,” lived in Cleveland, Ohio, with his girlfriend, T. T., and her two children: L. P., a 3-year-old boy, and A. T., an 18-month- old girl.1 Clark was also T. T.’s pimp, and he would regu- larly send her on trips to Washington, D. C., to work as a prostitute. In March 2010, T. T. went on one such trip, —————— 1 Like the Ohio courts, we identify Clark’s victims and their mother by their initials. 2 OHIO v. CLARK Opinion of the Court and she left the children in Clark’s care. The next day, Clark took L. P. to preschool. In the lunchroom, one of L. P.’s teachers, Ramona Whitley, ob- served that L. P.’s left eye appeared bloodshot. She asked him “ ‘[w]hat happened,’ ” and he initially said nothing. 2013–Ohio–4731, 999 N.E.2d 592, 594. Eventually, however, he told the teacher that he “ ‘fell.’ ” When they moved into the brighter lights of a classroom, Whitley noticed “ ‘[r]ed marks, like whips of some sort,’ ” on L. P.’s face. She notified the lead teacher, Debra Jones, who asked L. P., “ ‘Who did this? What happened to you?’ ” According to Jones, L. P. “ ‘seemed kind of bewildered’ ” and “ ‘said something like, Dee, Dee.’ ” Jones asked L. P. whether Dee is “big or little,” to which L. P. responded that “Dee is big.” App. 60, 64. Jones then brought L. P. to her supervisor, who lifted the boy’s shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the suspected abuse. When Clark later arrived at the school, he denied re- sponsibility for the injuries and quickly left with L. P. The next day, a social worker found the children at Clark’s mother’s house and took them to a hospital, where a phy- sician discovered additional injuries suggesting child abuse. L. P. had a black eye, belt marks on his back and stomach, and bruises all over his body. A. T. had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair. A grand jury indicted Clark on five counts of felonious assault (four related to A. T. and one related to L. P.), two counts of endangering children (one for each child), and two counts of domestic violence (one for each child). At trial, the State introduced L. P.’s statements to his teach- ers as evidence of Clark’s guilt, but L. P. did not testify. Under Ohio law, children younger than 10 years old are Cite as: 576 U. S. (2015) 3 Opinion of the Court incompetent to testify if they “appear incapable of receiv- ing just impressions of the facts and transactions respect- ing which they are examined, or of relating them truly.” Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a hearing, the trial court concluded that L. P. was not com- petent to testify. But under Ohio Rule of Evidence 807, which allows the admission of reliable hearsay by child abuse victims, the court ruled that L. P.’s statements to his teachers bore sufficient guarantees of trustworthiness to be admitted as evidence. Clark moved to exclude testimony about L. P.’s out-of- court statements under the Confrontation Clause. The trial court denied the motion, ruling that L. P.’s responses were not testimonial statements covered by the Sixth Amendment. The jury found Clark guilty on all counts except for one assault count related to A. T., and it sen- tenced him to 28 years’ imprisonment. Clark appealed his conviction, and a state appellate court reversed on the ground that the introduction of L. P.’s out-of-court state- ments violated the Confrontation Clause. In a 4-to-3 decision, the Supreme Court of Ohio af- firmed. It held that, under this Court’s Confrontation Clause decisions, L. P.’s statements qualified as testimo- nial because the primary purpose of the teachers’ ques- tioning “was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subse- quent criminal prosecution.” 999 N. E. 2d, at 597. The court noted that Ohio has a “manda- tory reporting” law that requires certain professionals, including preschool teachers, to report suspected child abuse to government authorities. See at 349–350, 999 N. E. 2d, at 596–597. In the court’s view, the teachers acted as agents of the State under the mandatory report- ing law and “sought facts concerning past criminal activity to identify the person responsible, eliciting statements that ‘are functionally identical to live, in-court testimony, 4 OHIO v. CLARK Opinion of the Court doing precisely what a witness does on direct examina- tion.’ ” ; some internal quotation marks omitted). We granted certiorari, 573 U. S. (2014), and we now reverse. II A The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amend- ment, provides: “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the wit- nesses against him.” In (1980), we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore “adequate ‘indicia of reliabil- ity.’ ” Such indicia are present, we held, if “the evidence falls within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” In we adopted a different approach. We explained that “wit- nesses,” under the Confrontation Clause, are those “who bear testimony,” and we defined “testimony” as “a solemn declaration or affirmation made for the purpose of estab- lishing or proving some fact.” (internal quota- tion marks and alteration omitted). The Sixth Amend- ment, we concluded, prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” at 54. Applying that definition to the facts in Crawford, we held that statements by a witness during police question- ing at the station house were testimonial and thus could not be admitted. But our decision in Crawford did not offer an exhaustive definition of “testimonial” statements. Cite as: 576 U. S. (2015) 5 Opinion of the Court Instead, Crawford stated that the label “applies at a min- imum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interroga- tions.” Our more recent cases have labored to flesh out what it means for a statement to be “testimonial.” In Davis v. Washington and (2006), which we decided together, we dealt with state- ments given to law enforcement officers by the victims of domestic abuse. The victim in Davis made statements to a 911 emergency operator during and shortly after her boyfriend’s violent attack. In Hammon, the victim, after being isolated from her abusive husband, made state- ments to police that were memorialized in a “ ‘battery affidavit.’ ” We held that the statements in Hammon were testimo- nial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the cir- cumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events poten- tially relevant to later criminal prosecution.” Because the cases involved statements to law enforcement officers, we reserved the question whether similar state- ments to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause. See In we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circum- stances.” And we reiterated our view in Davis 6 OHIO v. CLARK Opinion of the Court that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.” At the same time, we noted that “there may be other circum- stances, aside from ongoing emergencies, when a state- ment is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Instead, “whether an ongoing emergency exists is simply one factor that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” at 3. One additional factor is “the informality of the situation and the interrogation.” A “formal station- house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary pur- pose aimed at obtaining testimonial evidence against the accused. at 3, 377. And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” –359. In the end, the question is whether, in light of all the circumstances, viewed objec- tively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” Applying these principles in we held that the statements made by a dying victim about his assailant were not testimonial because the circumstances objectively indicated that the conversation was primarily aimed at quelling an ongoing emergency, not establishing evidence for the prosecution. Because the relevant state- ments were made to law enforcement officers, we again declined to decide whether the same analysis applies to statements made to individuals other than the police. See Cite as: 576 U. S. (2015) 7 Opinion of the Court Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary pur- pose was testimonial. “Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” But that does not mean that the Confrontation Clause bars every statement that satisfies the “primary purpose” test. We have recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. See v. California, ; Crawford, 541 U.S., at 56, n. 6, 62. Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confronta- tion Clause. B In this case, we consider statements made to preschool teachers, not the police. We are therefore presented with the question we have repeatedly reserved: whether state- ments to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforce- ment officers could conceivably raise confrontation con- cerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And consid- ering all the relevant circumstances here, L. P.’s state- ments clearly were not made with the primary purpose of creating evidence for Clark’s prosecution. Thus, their introduction at trial did not violate the Confrontation Clause. L. P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. When L. P.’s 8 OHIO v. CLARK Opinion of the Court teachers noticed his injuries, they rightly became worried that the 3-year-old was the victim of serious violence. Because the teachers needed to know whether it was safe to release L. P. to his guardian at the end of the day, they needed to determine who might be abusing the child.2 Thus, the immediate concern was to protect a vulnerable child who needed help. Our holding in is instruc- tive. As in the emergency in this case was ongo- ing, and the circumstances were not entirely clear. L. P.’s teachers were not sure who had abused him or how best to secure his safety. Nor were they sure whether any other children might be at risk. As a result, their questions and L. P.’s answers were primarily aimed at identifying and ending the threat. Though not as harried, the conversa- tion here was also similar to the 911 call in Davis. The teachers’ questions were meant to identify the abuser in order to protect the victim from future attacks. Whether the teachers thought that this would be done by appre- hending the abuser or by some other means is irrelevant. And the circumstances in this case were unlike the inter- rogation in Hammon, where the police knew the identity of the assailant and questioned the victim after shielding her from potential harm. There is no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecu- tion. On the contrary, it is clear that the first objective was to protect L. P. At no point did the teachers inform L. P. that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his state- ments to be used by the police or prosecutors. And the —————— 2 In fact, the teachers and a social worker who had come to the school were reluctant to release L. P. into Clark’s care after the boy identified Clark as his abuser. But after a brief “stare-down” with the social worker, Clark bolted out the door with L. P., and social services were not able to locate the children until the next day. App. 92–102, 150– 151. Cite as: 576 U. S. (2015) 9 Opinion of the Court conversation between L. P. and his teachers was informal and spontaneous. The teachers asked L. P. about his injuries immediately upon discovering them, in the infor- mal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse. This was nothing like the formalized station-house questioning in Crawford or the police interrogation and battery affidavit in Hammon. L. P.’s age fortifies our conclusion that the statements in question were not testimonial. Statements by very young children will rarely, if ever, implicate the Confrontation Clause. Few preschool students understand the details of our criminal justice system. Rather, “[r]esearch on chil- dren’s understanding of the legal system finds that” young children “have little understanding of prosecution.” Brief for American Professional Society on the Abuse of Chil- dren as Amicus Curiae 7, and n. 5 (collecting sources). And Clark does not dispute those findings. Thus, it is extremely unlikely that a 3-year-old child in L. P.’s posi- tion would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all. As a historical matter, moreover, there is strong evi- dence that statements made in circumstances similar to those facing L. P. and his teachers were admissible at common law. See Lyon & The History of Chil- dren’s Hearsay: From Old Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030 (2007); see also at 1041–1044 (exam- ining child rape cases from 1687 to 1788); J. Langbein, The Origins of Adversary Criminal Trial 239 (2003) (“The Old Bailey” court in 18th-century London “tolerated fla- grant hearsay in rape prosecutions involving a child victim who was not competent to testify because she was too 10 OHIO v. CLARK Opinion of the Court young to appreciate the significance of her oath”). And when 18th-century courts excluded statements of this sort, see, e.g., King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (K. B. 1779), they appeared to do so because the child should have been ruled competent to testify, not because the statements were otherwise inadmissible. See Lyon & at 1053–1054. It is thus highly doubtful that statements like L. P.’s ever would have been under- stood to raise Confrontation Clause concerns. Neither Crawford nor any of the cases that it has produced has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding. Certainly, the statements in this case are nothing like the notorious use of ex parte examination in Sir Walter Raleigh’s trial for treason, which we have frequently identified as “the principal evil at which the Confrontation Clause was directed.” Crawford, 541 U.S., at 50; see also Finally, although we decline to adopt a rule that state- ments to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L. P. was speaking to his teachers remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner’s iden- tity. See Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testi- monial than statements given to law enforcement officers. See, e.g., It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police. We do not ignore that reality. In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial. Cite as: 576 U. S. (2015) 11 Opinion of the Court III Clark’s efforts to avoid this conclusion are all off-base. He emphasizes Ohio’s mandatory reporting obligations, in an attempt to equate L. P.’s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers’ pressing concern was to protect L. P. and remove him from harm’s way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution. It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. The statements at issue in Davis and supported the defendants’ convictions, and the police always have an obligation to ask questions to resolve ongoing emergencies. Yet, we held in those cases that the Confrontation Clause did not prohibit in- troduction of the statements because they were not pri- marily intended to be testimonial. Thus, Clark is also wrong to suggest that admitting L. P.’s statements would be fundamentally unfair given that Ohio law does not allow incompetent children to testify. In any Confronta- tion Clause case, the individual who provided the out-of- court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt. The fact that the witness is unavailable because of a dif- ferent rule of evidence does not change our analysis. Finally, Clark asks us to shift our focus from the context of L. P.’s conversation with his teachers to the jury’s per- ception of those statements. Because, in his view, the “jury treated L. P.’s accusation as the functional equiva- lent of testimony,” Clark argues that we must prohibit its 12 OHIO v. CLARK Opinion of the Court introduction. Brief for Respondent 42. Our Confrontation Clause decisions, however, do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony. The logic of this argument, moreover, would lead to the conclusion that virtually all out-of-court state- ments offered by the prosecution are testimonial. The prosecution is unlikely to offer out-of-court statements unless they tend to support the defendant’s guilt, and all such statements could be viewed as a substitute for in- court testimony. We have never suggested, however, that the Confrontation Clause bars the introduction of all out- of-court statements that support the prosecution’s case. Instead, we ask whether a statement was given with the “primary purpose of creating an out-of-court substitute for trial testimony.” Here, the an- swer is clear: L. P.’s statements to his teachers were not testimonial. IV We reverse the judgment of the Supreme Court of Ohio and remand the case for further proceedings not incon- sistent with this opinion. It is so ordered. Cite as: 576 U. S. (2015) 1 SCALIA, J., concurring in judgment NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash­ ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES No. 13–1352 OHIO, PETITIONER v. DARIUS CLARK ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO [June 18, 2015] JUSTICE SCALIA, with whom JUSTICE GINSBURG joins, concurring in the judgment.

Justice Stevens

dissenting

Dolan v. City of Tigard

https://www.courtlistener.com/opinion/117861/dolan-v-city-of-tigard/

https://www.courtlistener.com/api/rest/v3/clusters/117861/

1993-081

The record does not tell us the dollar value of petitioner Florence Dolan's interest in excluding the public from the greenway adjacent to her hardware business. The mountain of briefs that the case has generated nevertheless makes it obvious that the pecuniary value of her victory is far less important than the rule of law that this case has been used to establish. It is unquestionably an important case. Certain propositions are not in dispute. The enlargement of the Tigard unit in Dolan's chain of hardware stores will have an adverse impact on the city's legitimate and substantial interests in controlling drainage in Fanno Creek and minimizing traffic congestion in Tigard's business district. That impact is sufficient to justify an outright denial of her application for approval of the expansion. The city has nevertheless *397 agreed to grant Dolan's application if she will comply with two conditions, each of which admittedly will mitigate the adverse effects of her proposed development. The disputed question is whether the city has violated the Fourteenth Amendment to the Federal Constitution by refusing to allow Dolan's planned construction to proceed unless those conditions are met. The Court is correct in concluding that the city may not attach arbitrary conditions to a building permit or to a variance even when it can rightfully deny the application outright. I also agree that state court decisions dealing with ordinances that govern municipal development plans provide useful guidance in a case of this kind. Yet the Court's description of the doctrinal underpinnings of its decision, the phrasing of its fledgling test of "rough proportionality," and the application of that test to this case run contrary to the traditional treatment of these cases and break considerable and unpropitious new ground. I Candidly acknowledging the lack of federal precedent for its exercise in rulemaking, the Court purports to find guidance in 12 "representative" state court decisions. To do so is certainly appropriate.[1] The state cases the Court consults, however, either fail to support or decidedly undermine the Court's conclusions in key respects. First, although discussion of the state cases permeates the Court's analysis of the appropriate test to apply in this case, the test on which the Court settles is not naturally derived from those courts' decisions. The Court recognizes as an initial matter that the city's conditions satisfy the "essential nexus" requirement announced in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), because they serve the legitimate interests in minimizing floods and traffic congestions. *398 Ante, at 387-388.[2] The Court goes on, however, to erect a new constitutional hurdle in the path of these conditions. In addition to showing a rational nexus to a public purpose that would justify an outright denial of the permit, the city must also demonstrate "rough proportionality" between the harm caused by the new land use and the benefit obtained by the condition. Ante, at 391. The Court also decides for the first time that the city has the burden of establishing the constitutionality of its conditions by making an "individualized determination" that the condition in question satisfies the proportionality requirement. See ibid. Not one of the state cases cited by the Court announces anything akin to a "rough proportionality" requirement. For the most part, moreover, those cases that invalidated municipal ordinances did so on state law or unspecified grounds roughly equivalent to Nollan' s "essential nexus" requirement. See, e. g., Simpson v. North Platte, 206 Neb. 240, 245-248, 292 N.W.2d 297, 301-302 (1980) (ordinance lacking "reasonable relationship" or "rational nexus" to property's use violated Nebraska Constitution); J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 583-585, 432 A.2d 12, 14-15 (1981) (state constitutional grounds). One case purporting *399 to apply the strict "specifically and uniquely attributable" test established by Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N.E.2d 799 (1961), nevertheless found that test was satisfied because the legislature had decided that the subdivision at issue created the need for a park or parks. Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P.2d 182, 187-188 (1964). In only one of the seven cases upholding a land use regulation did the losing property owner petition this Court for certiorari. See Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442 (1965), appeal dism'd, 385 U.S. 4 (1966) (want of substantial federal question). Although 4 of the 12 opinions mention the Federal Constitution—2 of those only in passing—it is quite obvious that neither the courts nor the litigants imagined they might be participating in the development of a new rule of federal law. Thus, although these state cases do lend support to the Court's reaffirmance of Nollan' s reasonable nexus requirement, the role the Court accords them in the announcement of its newly minted second phase of the constitutional inquiry is remarkably inventive. In addition, the Court ignores the state courts' willingness to consider what the property owner gains from the exchange in question. The Supreme Court of Wisconsin, for example, found it significant that the village's approval of a proposed subdivision plat "enables the subdivider to profit financially by selling the subdivision lots as home-building sites and thus realizing a greater price than could have been obtained if he had sold his property as unplatted lands." Jordan v. Menomonee Falls, 28 Wis. 2d, at 619-620; 137 N.W.2d, at 448. The required dedication as a condition of that approval was permissible "[i]n return for this benefit." Ibid. See also Collis v. Bloomington, 310 Minn. 5, 11-13, 246 N.W.2d 19, 23-24 (1976) (citing Jordan ); College Station v. Turtle Rock Corp., 680 S.W.2d 802, 806 (Tex. 1984) (dedication requirement only triggered when developer chooses *400 to develop land). In this case, moreover, Dolan's acceptance of the permit, with its attached conditions, would provide her with benefits that may well go beyond any advantage she gets from expanding her business. As the United States pointed out at oral argument, the improvement that the city's drainage plan contemplates would widen the channel and reinforce the slopes to increase the carrying capacity during serious floods, "confer[ring] considerable benefits on the property owners immediately adjacent to the creek." Tr. of Oral Arg. 41-42. The state court decisions also are enlightening in the extent to which they required that the entire parcel be given controlling importance. All but one of the cases involve challenges to provisions in municipal ordinances requiring developers to dedicate either a percentage of the entire parcel (usually 7 or 10 percent of the platted subdivision) or an equivalent value in cash (usually a certain dollar amount per lot) to help finance the construction of roads, utilities, schools, parks, and playgrounds. In assessing the legality of the conditions, the courts gave no indication that the transfer of an interest in realty was any more objectionable than a cash payment. See, e. g., Jenad, Inc. v. Scarsdale, 18 N.Y. 2d 78, 218 N.E.2d 673 (1966); Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976). None of the decisions identified the surrender of the fee owner's "power to exclude" as having any special significance. Instead, the courts uniformly examined the character of the entire economic transaction. II It is not merely state cases, but our own cases as well, that require the analysis to focus on the impact of the city's action on the entire parcel of private property. In Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), we stated that takings jurisprudence "does not divide a single parcel *401 into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." Id., at 130-131. Instead, this Court focuses "both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole." Ibid. Andrus v. Allard, 444 U.S. 51 (1979), reaffirmed the nondivisibility principle outlined in Penn Central, stating that "[a]t least where an owner possesses a full `bundle' of property rights, the destruction of one `strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety." 444 U.S., at 65-66.[3] As recently as last Term, we approved the principle again. See Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 644 (1993) (explaining that "a claimant's parcel of property [cannot] first be divided into what was taken and what was left" to demonstrate a compensable taking). Although limitation of the right to exclude others undoubtedly constitutes a significant infringement upon property ownership, Kaiser Aetna v. United States, 444 U.S. 164, 179-180 (1979), restrictions on that right do not alone constitute a taking, and do not do so in any event unless they "unreasonably impair the value or use" of the property. PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-84 (1980). The Court's narrow focus on one strand in the property owner's bundle of rights is particularly misguided in a case involving the development of commercial property. As Professor Johnston has noted: "The subdivider is a manufacturer, processer, and marketer of a product; land is but one of his raw materials. In subdivision control disputes, the developer is *402 not defending hearth and home against the king's intrusion, but simply attempting to maximize his profits from the sale of a finished product. As applied to him, subdivision control exactions are actually business regulations." Johnston, Constitutionality of Subdivision Control Exactions: The Quest for A Rationale, 52 Cornell L. Q. 871, 923 (1967).[4] The exactions associated with the development of a retail business are likewise a species of business regulation that heretofore warranted a strong presumption of constitutional validity. In Johnston's view, "if the municipality can demonstrate that its assessment of financial burdens against subdividers is rational, impartial, and conducive to fulfillment of authorized planning objectives, its action need be invalidated only in those extreme and presumably rare cases where the burden of compliance is sufficiently great to deter the owner from proceeding with his planned development." Id., at 917. The city of Tigard has demonstrated that its plan is rational and impartial and that the conditions at issue are "conducive to fulfillment of authorized planning objectives." Dolan, on the other hand, has offered no evidence that her burden of compliance has any impact at all on the value or profitability of her planned development. Following the teaching of the cases on which it purports to rely, the Court should not isolate the burden associated with the loss of the power to exclude *403 from an evaluation of the benefit to be derived from the permit to enlarge the store and the parking lot. The Court's assurances that its "rough proportionality" test leaves ample room for cities to pursue the "commendable task of land use planning," ante, at 396—even twice avowing that "[n]o precise mathematical calculation is required," ante, at 391, 395—are wanting given the result that test compels here. Under the Court's approach, a city must not only "quantify its findings," ante, at 395, and make "individualized determination[s]" with respect to the nature and the extent of the relationship between the conditions and the impact, ante, at 391, 393, but also demonstrate "proportionality." The correct inquiry should instead concentrate on whether the required nexus is present and venture beyond considerations of a condition's nature or germaneness only if the developer establishes that a concededly germane condition is so grossly disproportionate to the proposed development's adverse effects that it manifests motives other than land use regulation on the part of the city.[5] The heightened requirement the Court imposes on cities is even more unjustified when all the tools needed to resolve the questions presented by this case can be garnered from our existing case law. III Applying its new standard, the Court finds two defects in the city's case. First, while the record would adequately support a requirement that Dolan maintain the portion of the floodplain on her property as undeveloped open space, it does not support the additional requirement that the floodplain be dedicated to the city. Ante, at 392-395. Second, *404 while the city adequately established the traffic increase that the proposed development would generate, it failed to quantify the offsetting decrease in automobile traffic that the bike path will produce. Ante, at 395-396. Even under the Court's new rule, both defects are, at most, nothing more than harmless error. In her objections to the floodplain condition, Dolan made no effort to demonstrate that the dedication of that portion of her property would be any more onerous than a simple prohibition against any development on that portion of her property. Given the commercial character of both the existing and the proposed use of the property as a retail store, it seems likely that potential customers "trampling along petitioner's floodplain," ante, at 393, are more valuable than a useless parcel of vacant land. Moreover, the duty to pay taxes and the responsibility for potential tort liability may well make ownership of the fee interest in useless land a liability rather than an asset. That may explain why Dolan never conceded that she could be prevented from building on the floodplain. The city attorney also pointed out that absent a dedication, property owners would be required to "build on their own land" and "with their own money" a storage facility for the water runoff. Tr. of Oral Arg. 30-31. Dolan apparently "did have that option," but chose not to seek it. Id., at 31. If Dolan might have been entitled to a variance confining the city's condition in a manner this Court would accept, her failure to seek that narrower form of relief at any stage of the state administrative and judicial proceedings clearly should preclude that relief in this Court now. The Court's rejection of the bike path condition amounts to nothing more than a play on words. Everyone agrees that the bike path "could" offset some of the increased traffic flow that the larger store will generate, but the findings do not unequivocally state that it will do so, or tell us just how many cyclists will replace motorists. Predictions on such matters are inherently nothing more than estimates. Certainly *405 the assumption that there will be an offsetting benefit here is entirely reasonable and should suffice whether it amounts to 100 percent, 35 percent, or only 5 percent of the increase in automobile traffic that would otherwise occur. If the Court proposes to have the federal judiciary micromanage state decisions of this kind, it is indeed extending its welcome mat to a significant new class of litigants. Although there is no reason to believe that state courts have failed to rise to the task, property owners have surely found a new friend today. IV The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan. Even more consequential than its incorrect disposition of this case, however, is the Court's resurrection of a species of substantive due process analysis that it firmly rejected decades ago.[6] The Court begins its constitutional analysis by citing Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239 (1897), for the proposition that the Takings Clause of the Fifth Amendment is "applicable to the States through the Fourteenth Amendment." Ante, at 383. That opinion, however, contains no mention of either the Takings Clause or the Fifth Amendment;[7] it held that the protection afforded by the Due Process Clause of the Fourteenth Amendment extends to matters of substance as well as procedure,[8] and that the substance *406 of "the due process of law enjoined by the Fourteenth Amendment requires compensation to be made or adequately secured to the owner of private property taken for public use under the authority of a State." 166 U.S., at 235, 236— 241. It applied the same kind of substantive due process analysis more frequently identified with a better known case that accorded similar substantive protection to a baker's liberty interest in working 60 hours a week and 10 hours a day. See Lochner v. New York, 198 U.S. 45 (1905).[9] Later cases have interpreted the Fourteenth Amendment's substantive protection against uncompensated deprivations of private property by the States as though it incorporated the text of the Fifth Amendment's Takings Clause. See, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 481, n. 10 (1987). There was nothing problematic about that interpretation in cases enforcing the Fourteenth Amendment against state action that involved the actual physical invasion of private property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427— 433 (1982); Kaiser Aetna v. United States, 444 U. S., at 178-180. Justice Holmes charted a significant new course, however, when he opined that a state law making it "commercially impracticable to mine certain coal" had "very nearly the same effect for constitutional purposes as appropriating or destroying it." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922). The so-called "regulatory *407 takings" doctrine that the Holmes dictum[10] kindled has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open-ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair. This case inaugurates an even more recent judicial innovation than the regulatory takings doctrine: the application of the "unconstitutional conditions" label to a mutually beneficial transaction between a property owner and a city. The Court tells us that the city's refusal to grant Dolan a discretionary benefit infringes her right to receive just compensation for the property interests that she has refused to dedicate to the city "where the property sought has little or no relationship to the benefit."[11] Although it is well settled that a government cannot deny a benefit on a basis that infringes constitutionally protected interests—"especially [one's] interest in freedom of speech," Perry v. Sindermann, 408 U.S. 593, 597 (1972)—the "unconstitutional conditions" doctrine provides an inadequate framework in which to analyze this case.[12] *408 Dolan has no right to be compensated for a taking unless the city acquires the property interests that she has refused to surrender. Since no taking has yet occurred, there has not been any infringement of her constitutional right to compensation. See Preseault v. ICC, 494 U.S. 1, 11-17 (1990) (finding takings claim premature because property owner had not yet sought compensation under Tucker Act); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 294-295 (1981) (no taking where no one "identified any property . . . that has allegedly been taken"). Even if Dolan should accept the city's conditions in exchange for the benefit that she seeks, it would not necessarily follow that she had been denied "just compensation" since it would be appropriate to consider the receipt of that benefit in any calculation of "just compensation." See Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415 (noting that an "average reciprocity of advantage" was deemed to justify many laws); Hodel v. Irving, 481 U.S. 704, 715 (1987) (such "`reciprocity of advantage' " weighed in favor of a statute's constitutionality). *409 Particularly in the absence of any evidence on the point, we should not presume that the discretionary benefit the city has offered is less valuable than the property interests that Dolan can retain or surrender at her option. But even if that discretionary benefit were so trifling that it could not be considered just compensation when it has "little or no relationship" to the property, the Court fails to explain why the same value would suffice when the required nexus is present. In this respect, the Court's reliance on the "unconstitutional conditions" doctrine is assuredly novel, and arguably incoherent. The city's conditions are by no means immune from constitutional scrutiny. The level of scrutiny, however, does not approximate the kind of review that would apply if the city had insisted on a surrender of Dolan's First Amendment rights in exchange for a building permit. One can only hope that the Court's reliance today on First Amendment cases, see ante, at 385 (citing Perry v. Sindermann, supra, and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968)), and its candid disavowal of the term "rational basis" to describe its new standard of review, see ante, at 391, do not signify a reassertion of the kind of superlegislative power the Court exercised during the Lochner era. The Court has decided to apply its heightened scrutiny to a single strand—the power to exclude—in the bundle of rights that enables a commercial enterprise to flourish in an urban environment. That intangible interest is undoubtedly worthy of constitutional protection—much like the grandmother's interest in deciding which of her relatives may share her home in Moore v. East Cleveland, 431 U.S. 494 (1977). Both interests are protected from arbitrary state action by the Due Process Clause of the Fourteenth Amendment. It is, however, a curious irony that Members of the majority in this case would impose an almost insurmountable burden of proof on the property owner in the Moore case *410 while saddling the city with a heightened burden in this case.[13] In its application of what is essentially the doctrine of substantive due process, the Court confuses the past with the present. On November 13, 1922, the village of Euclid, Ohio, adopted a zoning ordinance that effectively confiscated 75 percent of the value of property owned by the Ambler Realty Company. Despite its recognition that such an ordinance "would have been rejected as arbitrary and oppressive" at an earlier date, the Court (over the dissent of Justices Van Devanter, McReynolds, and Butler) upheld the ordinance. Today's majority should heed the words of Justice Sutherland: "Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract *411 to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926). In our changing world one thing is certain: uncertainty will characterize predictions about the impact of new urban developments on the risks of floods, earthquakes, traffic congestion, or environmental harms. When there is doubt concerning the magnitude of those impacts, the public interest in averting them must outweigh the private interest of the commercial entrepreneur. If the government can demonstrate that the conditions it has imposed in a land use permit are rational, impartial and conducive to fulfilling the aims of a valid land use plan, a strong presumption of validity should attach to those conditions. The burden of demonstrating that those conditions have unreasonably impaired the economic value of the proposed improvement belongs squarely on the shoulders of the party challenging the state action's constitutionality. That allocation of burdens has served us well in the past. The Court has stumbled badly today by reversing it. I respectfully dissent.

The record does not tell us the dollar value of petitioner Florence Dolan's interest in excluding the public from the greenway adjacent to her hardware business. The mountain of briefs that the case has generated nevertheless makes it obvious that the pecuniary value of her victory is far less important than the rule of law that this case has been used to establish. It is unquestionably an important case. Certain propositions are not in dispute. The enlargement of the Tigard unit in Dolan's chain of hardware stores will have an adverse impact on the city's legitimate and substantial interests in controlling drainage in Fanno Creek and minimizing traffic congestion in Tigard's business district. That impact is sufficient to justify an outright denial of her application for approval of the expansion. The city has nevertheless *397 agreed to grant Dolan's application if she will comply with two conditions, each of which admittedly will mitigate the adverse effects of her proposed development. The disputed question is whether the city has violated the Fourteenth Amendment to the Federal Constitution by refusing to allow Dolan's planned construction to proceed unless those conditions are met. The Court is correct in concluding that the city may not attach arbitrary conditions to a building permit or to a variance even when it can rightfully deny the application outright. I also agree that state court decisions dealing with ordinances that govern municipal development plans provide useful guidance in a case of this kind. Yet the Court's description of the doctrinal underpinnings of its decision, the phrasing of its fledgling test of "rough proportionality," and the application of that test to this case run contrary to the traditional treatment of these cases and break considerable and unpropitious new ground. I Candidly acknowledging the lack of federal precedent for its exercise in rulemaking, the Court purports to find guidance in 12 "representative" state court decisions. To do so is certainly appropriate.[1] The state cases the Court consults, however, either fail to support or decidedly undermine the Court's conclusions in key respects. First, although discussion of the state cases permeates the Court's analysis of the appropriate test to apply in this case, the test on which the Court settles is not naturally derived from those courts' decisions. The Court recognizes as an initial matter that the city's conditions satisfy the "essential nexus" requirement announced in because they serve the legitimate interests in minimizing floods and traffic congestions. *398 Ante, at -388.[2] The Court goes on, however, to erect a new constitutional hurdle in the path of these conditions. In addition to showing a rational nexus to a public purpose that would justify an outright denial of the permit, the city must also demonstrate "rough proportionality" between the harm caused by the new land use and the benefit obtained by the condition. Ante, at 391. The Court also decides for the first time that the city has the burden of establishing the constitutionality of its conditions by making an "individualized determination" that the condition in question satisfies the proportionality requirement. See Not one of the state cases cited by the Court announces anything akin to a "rough proportionality" requirement. For the most part, moreover, those cases that invalidated municipal ordinances did so on state law or unspecified grounds roughly equivalent to Nollan' s "essential nexus" requirement. See, e. g., ; J. E. D. Associates, One case purporting *399 to apply the strict "specifically and uniquely attributable" test established by Pioneer Trust & Savings nevertheless found that test was satisfied because the legislature had decided that the subdivision at issue created the need for a park or parks. Billings Properties, In only one of the seven cases upholding a land use regulation did the losing property owner petition this Court for certiorari. See appeal dism'd, Although 4 of the 12 opinions mention the Federal Constitution—2 of those only in passing—it is quite obvious that neither the courts nor the litigants imagined they might be participating in the development of a new rule of federal law. Thus, although these state cases do lend support to the Court's reaffirmance of Nollan' s reasonable nexus requirement, the role the Court accords them in the announcement of its newly minted second phase of the constitutional inquiry is remarkably inventive. In addition, the Court ignores the state courts' willingness to consider what the property owner gains from the exchange in question. The Supreme Court of Wisconsin, for example, found it significant that the village's approval of a proposed subdivision plat "enables the subdivider to profit financially by selling the subdivision lots as home-building sites and thus realizing a greater price than could have been obtained if he had sold his property as unplatted lands." -620; The required dedication as a condition of that approval was permissible "[i]n return for this benefit." See also ; College In this case, moreover, Dolan's acceptance of the permit, with its attached conditions, would provide her with benefits that may well go beyond any advantage she gets from expanding her business. As the United pointed out at oral argument, the improvement that the city's drainage plan contemplates would widen the channel and reinforce the slopes to increase the carrying capacity during serious floods, "confer[ring] considerable benefits on the property owners immediately adjacent to the creek." Tr. of Oral Arg. 41-42. The state court decisions also are enlightening in the extent to which they required that the entire parcel be given controlling importance. All but one of the cases involve challenges to provisions in municipal ordinances requiring developers to dedicate either a percentage of the entire parcel (usually 7 or 10 percent of the platted subdivision) or an equivalent value in cash (usually a certain dollar amount per lot) to help finance the construction of roads, utilities, schools, parks, and playgrounds. In assessing the legality of the conditions, the courts gave no indication that the transfer of an interest in realty was any more objectionable than a cash payment. See, e. g., Jenad, ; ; None of the decisions identified the surrender of the fee owner's "power to exclude" as having any special significance. Instead, the courts uniformly examined the character of the entire economic transaction. II It is not merely state cases, but our own cases as well, that require the analysis to focus on the impact of the city's action on the entire parcel of private property. In Penn Central Transp. we stated that takings jurisprudence "does not divide a single parcel *401 into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." Instead, this Court focuses "both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole." reaffirmed the nondivisibility principle outlined in Penn Central, stating that "[a]t least where an owner possesses a full `bundle' of property rights, the destruction of one `strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety." -66.[3] As recently as last Term, we approved the principle again. See Concrete Pipe & Products of Cal., Although limitation of the right to exclude others undoubtedly constitutes a significant infringement upon property ownership, Kaiser restrictions on that right do not alone constitute a taking, and do not do so in any event unless they "unreasonably impair the value or use" of the property. PruneYard Shopping The Court's narrow focus on one strand in the property owner's bundle of rights is particularly misguided in a case involving the development of commercial property. As Professor Johnston has noted: "The subdivider is a manufacturer, processer, and marketer of a product; land is but one of his raw materials. In subdivision control disputes, the developer is *402 not defending hearth and home against the king's intrusion, but simply attempting to maximize his profits from the sale of a finished product. As applied to him, subdivision control exactions are actually business regulations." Johnston, Constitutionality of Subdivision Control Exactions: The Quest for A Rationale, 52 Cornell L. Q. 871, 923 (1967).[4] The exactions associated with the development of a retail business are likewise a species of business regulation that heretofore warranted a strong presumption of constitutional validity. In Johnston's view, "if the municipality can demonstrate that its assessment of financial burdens against subdividers is rational, impartial, and conducive to fulfillment of authorized planning objectives, its action need be invalidated only in those extreme and presumably rare cases where the burden of compliance is sufficiently great to deter the owner from proceeding with his planned development." The city of Tigard has demonstrated that its plan is rational and impartial and that the conditions at issue are "conducive to fulfillment of authorized planning objectives." Dolan, on the other hand, has offered no evidence that her burden of compliance has any impact at all on the value or profitability of her planned development. Following the teaching of the cases on which it purports to rely, the Court should not isolate the burden associated with the loss of the power to exclude *403 from an evaluation of the benefit to be derived from the permit to enlarge the store and the parking lot. The Court's assurances that its "rough proportionality" test leaves ample room for cities to pursue the "commendable task of land use planning," ante, at 396—even twice avowing that "[n]o precise mathematical calculation is required," ante, at 391, 395—are wanting given the result that test compels here. Under the Court's approach, a city must not only "quantify its findings," ante, at 395, and make "individualized determination[s]" with respect to the nature and the extent of the relationship between the conditions and the impact, ante, at 391, 393, but also demonstrate "proportionality." The correct inquiry should instead concentrate on whether the required nexus is present and venture beyond considerations of a condition's nature or germaneness only if the developer establishes that a concededly germane condition is so grossly disproportionate to the proposed development's adverse effects that it manifests motives other than land use regulation on the part of the city.[5] The heightened requirement the Court imposes on cities is even more unjustified when all the tools needed to resolve the questions presented by this case can be garnered from our existing case law. III Applying its new standard, the Court finds two defects in the city's case. First, while the record would adequately support a requirement that Dolan maintain the portion of the floodplain on her property as undeveloped open space, it does not support the additional requirement that the floodplain be dedicated to the city. Ante, at 392-395. Second, *404 while the city adequately established the traffic increase that the proposed development would generate, it failed to quantify the offsetting decrease in automobile traffic that the bike path will produce. Ante, at 395-396. Even under the Court's new rule, both defects are, at most, nothing more than harmless error. In her objections to the floodplain condition, Dolan made no effort to demonstrate that the dedication of that portion of her property would be any more onerous than a simple prohibition against any development on that portion of her property. Given the commercial character of both the existing and the proposed use of the property as a retail store, it seems likely that potential customers "trampling along petitioner's floodplain," ante, at 393, are more valuable than a useless parcel of vacant land. Moreover, the duty to pay taxes and the responsibility for potential tort liability may well make ownership of the fee interest in useless land a liability rather than an asset. That may explain why Dolan never conceded that she could be prevented from building on the floodplain. The city attorney also pointed out that absent a dedication, property owners would be required to "build on their own land" and "with their own money" a storage facility for the water runoff. Tr. of Oral Arg. 30-31. Dolan apparently "did have that option," but chose not to seek it. If Dolan might have been entitled to a variance confining the city's condition in a manner this Court would accept, her failure to seek that narrower form of relief at any stage of the state administrative and judicial proceedings clearly should preclude that relief in this Court now. The Court's rejection of the bike path condition amounts to nothing more than a play on words. Everyone agrees that the bike path "could" offset some of the increased traffic flow that the larger store will generate, but the findings do not unequivocally state that it will do so, or tell us just how many cyclists will replace motorists. Predictions on such matters are inherently nothing more than estimates. Certainly *405 the assumption that there will be an offsetting benefit here is entirely reasonable and should suffice whether it amounts to 100 percent, 35 percent, or only 5 percent of the increase in automobile traffic that would otherwise occur. If the Court proposes to have the federal judiciary micromanage state decisions of this kind, it is indeed extending its welcome mat to a significant new class of litigants. Although there is no reason to believe that state courts have failed to rise to the task, property owners have surely found a new friend today. IV The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan. Even more consequential than its incorrect disposition of this case, however, is the Court's resurrection of a species of substantive due process analysis that it firmly rejected decades ago.[6] The Court begins its constitutional analysis by citing Chicago, B. & Q. R. for the proposition that the Takings Clause of the Fifth Amendment is "applicable to the through the Fourteenth Amendment." Ante, at 383. That opinion, however, contains no mention of either the Takings Clause or the Fifth Amendment;[7] it held that the protection afforded by the Due Process Clause of the Fourteenth Amendment extends to matters of substance as well as procedure,[8] and that the substance *406 of "the due process of law enjoined by the Fourteenth Amendment requires compensation to be made or adequately secured to the owner of private property taken for public use under the authority of a State." 236— 241. It applied the same kind of substantive due process analysis more frequently identified with a better known case that accorded similar substantive protection to a baker's liberty interest in working 60 hours a week and 10 hours a day. See[9] Later cases have interpreted the Fourteenth Amendment's substantive protection against uncompensated deprivations of private property by the as though it incorporated the text of the Fifth Amendment's Takings Clause. See, e. g., Keystone Bituminous Coal There was nothing problematic about that interpretation in cases enforcing the Fourteenth Amendment against state action that involved the actual physical invasion of private property. See ; Kaiser -180. Justice Holmes charted a significant new course, however, when he opined that a state law making it "commercially impracticable to mine certain coal" had "very nearly the same effect for constitutional purposes as appropriating or destroying it." Pennsylvania Coal The so-called "regulatory *407 takings" doctrine that the Holmes dictum[10] kindled has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open-ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair. This case inaugurates an even more recent judicial innovation than the regulatory takings doctrine: the application of the "unconstitutional conditions" label to a mutually beneficial transaction between a property owner and a city. The Court tells us that the city's refusal to grant Dolan a discretionary benefit infringes her right to receive just compensation for the property interests that she has refused to dedicate to the city "where the property sought has little or no relationship to the benefit."[11] Although it is well settled that a government cannot deny a benefit on a basis that infringes constitutionally protected interests—"especially [one's] interest in freedom of speech," —the "unconstitutional conditions" doctrine provides an inadequate framework in which to analyze this case.[12] *408 Dolan has no right to be compensated for a taking unless the city acquires the property interests that she has refused to surrender. Since no taking has yet occurred, there has not been any infringement of her constitutional right to compensation. See ; Even if Dolan should accept the city's conditions in exchange for the benefit that she seeks, it would not necessarily follow that she had been denied "just compensation" since it would be appropriate to consider the receipt of that benefit in any calculation of "just compensation." See Pennsylvania Coal ; *409 Particularly in the absence of any evidence on the point, we should not presume that the discretionary benefit the city has offered is less valuable than the property interests that Dolan can retain or surrender at her option. But even if that discretionary benefit were so trifling that it could not be considered just compensation when it has "little or no relationship" to the property, the Court fails to explain why the same value would suffice when the required nexus is present. In this respect, the Court's reliance on the "unconstitutional conditions" doctrine is assuredly novel, and arguably incoherent. The city's conditions are by no means immune from constitutional scrutiny. The level of scrutiny, however, does not approximate the kind of review that would apply if the city had insisted on a surrender of Dolan's First Amendment rights in exchange for a building permit. One can only hope that the Court's reliance today on First Amendment cases, see ante, at 385 ), and its candid disavowal of the term "rational basis" to describe its new standard of review, see ante, at 391, do not signify a reassertion of the kind of superlegislative power the Court exercised during the Lochner era. The Court has decided to apply its heightened scrutiny to a single strand—the power to exclude—in the bundle of rights that enables a commercial enterprise to flourish in an urban environment. That intangible interest is undoubtedly worthy of constitutional protection—much like the grandmother's interest in deciding which of her relatives may share her home in Both interests are protected from arbitrary state action by the Due Process Clause of the Fourteenth Amendment. It is, however, a curious irony that Members of the majority in this case would impose an almost insurmountable burden of proof on the property owner in the Moore case *410 while saddling the city with a heightened burden in this case.[13] In its application of what is essentially the doctrine of substantive due process, the Court confuses the past with the present. On November 13, 1922, the village of Euclid, Ohio, adopted a zoning ordinance that effectively confiscated 75 percent of the value of property owned by the Ambler Realty Company. Despite its recognition that such an ordinance "would have been rejected as arbitrary and oppressive" at an earlier date, the Court (over the dissent of Justices Van Devanter, McReynolds, and Butler) upheld the ordinance. Today's majority should heed the words of Justice Sutherland: "Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract *411 to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise." Village of In our changing world one thing is certain: uncertainty will characterize predictions about the impact of new urban developments on the risks of floods, earthquakes, traffic congestion, or environmental harms. When there is doubt concerning the magnitude of those impacts, the public interest in averting them must outweigh the private interest of the commercial entrepreneur. If the government can demonstrate that the conditions it has imposed in a land use permit are rational, impartial and conducive to fulfilling the aims of a valid land use plan, a strong presumption of validity should attach to those conditions. The burden of demonstrating that those conditions have unreasonably impaired the economic value of the proposed improvement belongs squarely on the shoulders of the party challenging the state action's constitutionality. That allocation of burdens has served us well in the past. The Court has stumbled badly today by reversing it. I respectfully dissent.

Justice Blackmun

dissenting

Regan v. Wald

https://www.courtlistener.com/opinion/111243/regan-v-wald/

https://www.courtlistener.com/api/rest/v3/clusters/111243/

1983-150

All parties concede that the 1982 restrictions on travel-related expenditures in Cuba, 47 Fed. Reg. 17030 (1982), were not promulgated in conformity with the procedural requirements of the International Emergency Economic Powers Act of 1977, Pub. L. 95-223, Title II, 91 Stat. 1626, 50 U.S. C. §§ 1701-1706 (IEEPA). Thus, those restrictions are invalid unless they were authorized by § 101(b) of Pub. L. 95-223, 91 Stat. 1625, the grandfather clause of the IEEPA. Because I do not agree that the grandfather clause encompasses the exercise of Presidential power at issue here, I would affirm the judgment of the United States Court of Appeals for the First Circuit. I Congress promulgated Public Law 95-223 to address problems unforeseen by the drafters of the Trading With the Enemy Act of 1917, 40 Stat. 411, as amended, 50 U.S. C. App. § 1 et seq. (TWEA). The TWEA was one of several statutes that reflected Congress' conclusion that the President should have increased authority in times of war or national emergency in order to respond to such crisis situations with the coordinated alacrity they require. Accordingly, *245 the TWEA provided the President with a broad range of powers over international trade in time of war or "national emergency." Although TWEA provided clear procedures for enhancing the authority of a President when an emergency arose, the Act contained no similar provision to reduce the President's authority to its normal scope when the emergency subsided. Once the President had declared a state of national emergency, the emergency officially continued to exist until the President declared that it had ended. Until such a declaration of termination was made, the President enjoyed the broad authority that the TWEA conferred upon him to address the original emergency. The historical record shows that once a President had declared the existence of a national emergency, he was slow to terminate it even after the circumstances or tensions that had led to the declaration could no longer be said to pose a threat of emergency proportion to the Nation. See generally Emergency Controls on International Economic Transactions: Hearings before the Subcommittee on International Economic Policy and Trade of the House Committee on International Relations, 95th Cong., 1st Sess., 16-19 (1977) (Subcommittee Hearings) (statement of Prof. Andreas F. Lowenfeld); id., at 27-31 (statement of Prof. Harold G. Maier). Because of this pattern of behavior, TWEA emergency authority operated as a one-way ratchet to enhance greatly the President's discretionary authority over foreign policy. At the time that Congress began to consider amendments to the TWEA, the United States technically faced four declared states of "emergency." Among the four were President Franklin D. Roosevelt's 1933 Bank Holiday Declaration, Presidential Proclamation No. 2040, 48 Stat. 1691; President Nixon's 1970 declaration concerning a Post Office strike, Presidential Proclamation No. 3972, 3 CFR 473 (1966-1970 Comp.); and President Nixon's 1971 declaration concerning the country's balance-of-payments problems, Presidential Proclamation No. 4074, 3 CFR 60 (1971-1975 Comp.). The *246 national emergency most often invoked in connection with exercises of TWEA powers was the emergency that had been declared on December 16, 1950, by President Truman in response to the developing Korean conflict. Presidential Proclamation No. 2914, 64 Stat. A454. That Proclamation warned of the threat of Communist aggression. Because of this declaration of emergency, the President retained broad authority of indefinite duration to respond to anything that logically could be related to the general threat of the spread of Communism. There was widespread feeling that this broad grant of emergency powers conflicted with the intent of the TWEA, which sought to empower a President to respond to situations that presented an imminent threat requiring immediate response.[1] The expert witnesses who testified before the House Subcommittee expressed a general consensus that § 5(b) of the TWEA inappropriately had been used as a flexible instrument of foreign policy in nonemergency situations. See, e. g., Subcommittee Hearings, at 13-14, 16 (statement of Prof. Andreas F. Lowenfeld) ("no practical constraint limiting actions taken under emergency authority to measures related to the emergency"); id., at 22-23 (statement of Prof. Harold G. Maier) ("combination of legislative permissiveness and executive assertiveness over the past 40 years has created a significant shift in the functional allocations of constitutional power to regulate foreign commerce"); id., at 39 (statement of Prof. Stanley D. Metzger) (suggesting *247 necessary checks and limitations on executive use of § 5(b) powers); id., at 83 (statement of Peter Weiss, Center for Constitutional Rights) (TWEA "a prime example of the unchecked proliferation of Presidential power for purposes totally unforeseen by the creators of that power"). The Members of Congress who heard the testimony found it convincing. See, e. g., H. R. Rep. No. 95-459, p. 7 (1977) (§ 5(b) "has become essentially an unlimited grant of authority"); Revision of Trading with the Enemy Act, Markup before the House Committee on International Relations, 95th Cong., 1st Sess., 8 (1977) (House Markup) (statement of Rep. Bingham) ("Section 5(b) has become a grab-bag of authorities which Presidents have been able to use to do virtually anything for which they could find no specific authority"). House Subcommittee Members also believed that some of the actions taken by the Executive Branch under the TWEA had, at most, a shaky foundation in actual emergency situations. In an exchange with Assistant Secretary of State Julius L. Katz, Subcommittee Chairman Bingham voiced his incredulity concerning the bases for certain then-effective regulations promulgated under § 5(b): "MR. BINGHAM. Mr. Katz, what is the national emergency currently facing us that warrants the use of powers under the [TWEA]? . . . "MR. KATZ. It continues to be the emergency involving the threat of Communist aggression which was declared in 1950 at the time of the aggression in Korea. "MR. BINGHAM. Are you serious? "MR. KATZ. That is the national emergency, Mr. Chairman, and it continues. "MR. BINGHAM. The emergency is the emergency that existed in 1950? "MR. KATZ. It has not been terminated." Subcommittee Hearings, at 110.[2] *248 Dissatisfied generally with the responses of spokesmen from the Executive Branch, Representative Bingham criticized the administration's lack of cooperation in the effort to amend the TWEA. He further observed: "Now I think that you have to face the facts, which are that the executive branch wants to be free to continue to act with an enormous degree of discretion on the basis that an emergency exists, although by no commonsense application of the term could the situation be called an emergency. "The threat of Communist aggression, if you will, or the threat of Communist competition which we face in the world, Mr. Katz, is a permanent situation. It is not an emergency unless you are going to define the situation that exists in the world today as a permanent emergency. I don't see how you justify use of the term. ..... "Up until now the reaction of the subcommittee, and the reaction of the witnesses that we have had, has been that the situation that we are in is quite an incredible one, and it has to be substantially altered to try to conform with reality and with principle." Id., at 113-114. It is clear that Congress intended to curtail the discretionary authority over foreign affairs that the President had accumulated because of past "emergencies" that no longer fit Congress' conception of that term. To accomplish this goal, Congress amended the TWEA and enacted the IEEPA. Congress left intact the powers that the TWEA had conferred upon the President during time of war, but removed from the TWEA the authority for Presidential action in a national emergency. As a substitute for those powers, Congress promulgated the IEEPA to confer power upon the President in national-emergency situations. The substantive reach of the President's power under the IEEPA is *249 slightly narrower than it had been under the TWEA,[3] and Congress placed several procedural restrictions on the President's exercise of the national-emergency powers, including congressional consultation, review, and termination. The prospective nature of the IEEPA left Congress with the dilemma of how to deal with existing regulations that had been promulgated under § 5(b) and obviously had not been issued in accordance with the new procedures set forth in the IEEPA. There were those on the House Subcommittee considering the amendments to the TWEA who thought that there should be no grandfathering and that the existing regulations should be allowed to expire. See, e. g., Subcommittee Hearings, at 167, 168-169, 198 (remarks of Rep. Cavanaugh); id., at 210 (remarks of Rep. Findley); id., at 119 (colloquy between Rep. Bingham and Assistant Treasury Secretary Bergsten). Such an approach would have required the President to evaluate each situation in which regulations were in effect and to determine whether the need for reinstitution of the regulations justified a new declaration of national emergency. Others believed that Congress should conduct such a review and determine which restrictions were still justified by current exigencies. See H. R. Rep. No. 95-459, at 9-10. In response to two related concerns, however, the view that there was a need for some sort of grandfathering finally carried the day. The first argument supporting a grandfather clause was the desire to preserve the administration's bargaining position in dealing with countries that were the subject of existing embargoes and asset freezes. Testimony before the *250 House Subcommittee expressed the view that the President should not be forced by Congress to make unilateral concessions to countries that had been the targets of exercises of § 5(b) authorities. In other words, many believed that the President should not be forced to give up "bargaining chips" without receiving something in return from the countries on the other side of the negotiations. Subcommittee Hearings, at 19 (statement of Prof. Lowenfeld) ("perhaps [the Cuba embargo] should not be terminated . . . without a quid pro quo"); id., at 103, 113, 119 (statements of Assistant Treasury Secretary Bergsten) (unilateral termination of embargoes "would severely undermine the U. S. negotiating position with those countries, and our worldwide posture"); 123 Cong. Rec. 22477 (1977) (remarks of Rep. Whalen). The second argument in favor of some form of a grandfather clause was related to the first. Several of the witnesses who testified at the hearings on the bill felt that the President should not be faced with the need to declare a new national emergency in order to continue existing restrictions. Such a declaration would have foreign policy reverberations of its own, and might inject new tension into a sensitive situation in which tensions were on the decline. See, e. g., Subcommittee Hearings, at 19 (statement of Prof. Lowenfeld); id., at 191-192 (remarks of Mr. Santos, Treasury Department attorney adviser). It would have been incongruous, in other words, for Congress to force the President to declare new emergencies in nonemergency situations simply to avoid having to end restrictions that, for negotiating reasons, the President had concluded should not be ended unilaterally. The proponents of grandfathering voiced their desire that the grandfather clause be tailored narrowly to fit these concerns. In its early form before the Subcommittee, the clause contained two subparts, §§ 101(b)(1) and (2), which read: "(1) any authority conferred upon the President by section 5(b) of the Trading with the Enemy Act, which is being exercised with respect to a set of circumstances on the date of enactment of this Act as a result of a national *251 emergency declared by the President before such date of enactment, may continue to be exercised with respect to such set of circumstances; and "(2) any other authority conferred upon the President by that section may be exercised to deal with the same set of circumstances." Subcommittee Working Draft of June 8, 1977, 95th Cong., 1st Sess., § 101(b) (emphasis added). In response to a question about the meaning of § 101(b)(2), Subcommittee Staff Director R. Roger Majak explained the purposes of the provision: "[W]ith respect to any uses of 5(b) authorities for any presently existing situation, not only could the President use those particular authorities that he is now using, but any others which are conferred by section 5(b). "So if the President is presently using asset controls toward a particular country, but is not using, let us say, currency controls, he nonetheless could use, at some later date if he so desired, currency controls with respect to the situation. ..... "I think it boils down to a question of whether we are grandfathering a particular situation, and all the powers that may be necessary to deal with the situation, or whether we are grandfathering the particular authorities themselves and their usage." Subcommittee Hearings, at 167. Representative Bingham voiced his opposition to such a broad grandfather clause. "I have a serious question about that. It seems to me that if the President has not up to now used some authority that he has under section 5(b) in connection with those cases where 5(b) has been applied, I don't know why it should be necessary to give him authority to expand what has already been done. It is really going beyond grandfathering. *252 "It seems to me that grandfathering applies to what has been done to date, and that should be ample authority." Ibid. Section 101(b)(2) was removed from the draft bill presented to the Committee.[4] I can think of few sorts of information *253 routinely found in legislative histories that would give a clearer indication that Congress intended to grandfather only the regulations and restrictions that already had been exercised.[5] When the full House Committee viewed § 101(b) after § 101(b)(2) had been deleted, Representative Cavanaugh sought to ascertain that the clause was drawn as narrowly as possible to include only those regulations currently in effect: "MR. CAVANAUGH.. . . First of all, Mr. Bergsten, would it be your understanding that section 101 would strictly limit and restrict the grandfathering of powers currently being exercised under 5(b) to those specific uses of the authorities granted in 5(b) being employed as of June 1, 1977. "MR. BERGSTEN. Yes, sir. "MR. CAVANAUGH. And it would preclude the expansion by the President of the authorities that might be included in 5(b) but are not being employed as of June 1, 1977. "MR. BERGSTEN. That is right." House Markup, at 21. In explaining the effect of the grandfather clause to the full House Committee, Representative Bingham stressed that *254 the grandfather clause would leave intact "specific current uses of 5(b) authorities" and emphasized that the bill "neither condones nor condemns existing policies." Id., at 7. It is important to emphasize that the decision to grandfather the specific uses of authorities being exercised at a certain date did not reflect congressional acknowledgment that those uses of authorities were in fact addressed to true emergency situations. To the contrary, Congress openly expressed its view that many of the grandfathered restrictions had no real basis in an emergency situation. H. R. Rep. No. 95-459, at 11 (few current uses could be justified as responding to existing emergency situations). Responding to this sentiment, Congress expressly provided annual procedures governing the continuation of grandfathered authorities that are different from the procedures that govern the continued exercise of any new restrictions entered pursuant to a new state of emergency. With respect to future exercises of emergency power, the President's decision to continue in effect the proclamation of national emergency, and the regulations promulgated thereunder, are subject to semiannual review by Congress. See 50 U.S. C. §§ 1622(b), 1641(c). With respect to grandfathered authorities, the grandfather clause requires only that the President find continued exercise of the authority to be in the national interest. § 101(b), 50 U.S. C. App. § 5; Subcommittee Hearings, at 208. In this way, the Subcommittee avoided perpetuating the "phony character" of the national emergencies under which current exercises of § 5(b) power were promulgated. Id., at 210. See also, id., at 193 (statement by Mr. Santos, Treasury Department attorney adviser) (administration would have difficulty making good-faith declaration of current national emergency with respect to Cuba); House Markup, at 3 (remarks of Rep. Bingham). In sum, the grandfather provision of the IEEPA was designed narrowly to respond to a particularized set of *255 concerns. It sought to avoid placing the President in the awkward situation either of making unilateral concessions to countries subject to restrictions or declaring a new state of emergency with respect to a country where none, in fact, existed. Congress concluded that these objectives were served fully with a grandfather clause that preserved existing restrictions, but gave the President no authority to impose new restrictions except through the new IEEPA procedures that govern the President's authority to respond to new emergencies. II The Court rejects this narrow interpretation in favor of one that loses all sight of the general legislative purpose of the IEEPA and the clear legislative intent behind the grandfather clause. To achieve its labored result, the Court invokes a series of platitudes on statutory interpretation, but ignores their application to this case. Ironically, the very pieces of legislative history that the Court cites to justify its result clearly support the contrary view. Recognizing the clear import of the legislative history, the Court begins by discovering absolute clarity in the "plain language" of the statute. The Court focuses on the fact that Congress used the term "authorities" in the grandfather clause instead of either the word "restrictions" or "prohibitions." Finding what, in its view, is a vast difference between the meaning of the first term and that of the latter two, the Court concludes that if Congress had meant "restrictions" it would have said so explicitly. Ante, at 236. But the Court's confident claim that the statutory language is without ambiguity is pure ipse dixit. The Court concedes that throughout the legislative history Congress referred to what it wanted to grandfather as "restrictions," "controls," "specific uses," "prohibitions," "existing uses," and "authorities." It is true that Congress used the word "authorities" when it drafted the statute, but there is nothing to indicate *256 that it used the term "authorities" to express any intent other than that which is made plain in the legislative history. The likely reason that the term "authorities" was used instead of a term such as "prohibitions" is simply that § 5(b) authorized a President to do much more than issue prohibitions, and Congress intended to grandfather the uses of those powers as well. For example, § 5(b) authorizes the President to conduct investigations of various activities and to "freeze" the assets of foreign countries and foreign nationals. At the time Congress enacted the IEEPA, the President had exercised these authorities over several countries, including Cuba, and Congress clearly intended to grandfather those exercises. Because the exercise of these powers does not fit naturally within a word such as "prohibitions," it is hardly surprising that Congress did not use that term. Thus, the short answer to the Court's question as to why Congress did not use the term "prohibitions" is simply that Congress intended to include more than mere prohibitions. There is nothing in the language of the statute to suggest, however, that Congress intended the grandfather clause to provide a President with the authority to increase the restrictions applicable to a particular country without following the IEEPA procedures. As the legislative history makes clear, when Congress grandfathered all "authorities . . . being exercised," it sought to preserve the uses of § 5(b) authorities that the President had employed in the past to address a particular situation — but no more. As Representative Bingham, a principal drafter of the bill, stated: "if the President has not up to now used some authority that he has under section 5(b) in connection with those cases where 5(b) has been applied, I don't know why it should be necessary to give him authority to expand what has already been done." Subcommittee Hearings, at 167. In its effort to downplay the clear legislative history of the grandfather clause, the Court relies on platitudes about the hazards of relying on such legislative history. The Court correctly states: *257 "Oral testimony of witnesses and individual Congressmen, unless very precisely directed to the intended meaning of particular words in a statute, can seldom be expected to be as precise as the enacted language itself. To permit what we regard as clear statutory language to be materially altered by such colloquies, which often take place before the bill has achieved its final form, would open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President." Ante, at 237. I have no disagreement with these generalities; they simply have no relevance to this case. The "colloquies" referred to involve the drafters of the Act, are directed at the precise language of the grandfather clause, and either were addressed to the bill in its final form, or aimed at getting changes in the bill to deal with precisely the problem at issue in this case. Failing to heed its own advice, the Court then would rely on the legislative history of the Act to discern a congressional purpose consistent with its interpretation of the statute. The Court concludes that the purpose of the grandfather clause was to prevent the proposed bill from becoming controversial. Once again, I have no disagreement with this general interpretation. But the Court misapprehends the aspects of the statute that Congress feared would be divisive. Congress concluded that it would be controversial for it to examine existing controls to determine whether they were justified by the exigencies of particular situations. H. R. Rep. No. 95-459, at 9-10. And Congress also felt it undesirable to force the President either to declare new national emergencies where none existed or to end restrictions without obtaining a quid pro quo. Accordingly, Congress decided that it would grandfather what the President already had done with respect to particular situations. The "controversy" that Congress hoped the grandfather clause would *258 avert had nothing to do with the President's authority to respond to future situations. The Court displays its utter confusion about this matter through its reliance on a quotation from the House Report that the Court believes supports its broad interpretation of the grandfather clause. In fact, the passage provides strong support for exactly the interpretation that the Court rejects. The passage reads: "Certain current uses of the authorities affected by H. R. 7738 are controversial — particularly the total U. S. trade embargoes of Cuba and Vietnam. The committee considered carefully whether to revise, or encourage the President to revise, such existing uses of international economic transaction controls, and thereby the policies they reflect, in this legislation. The committee decided that to revise current uses, and to improve policies and procedures that will govern future uses, in a single bill would be difficult and divisive. Committee members concluded that improved procedures for future use of emergency international economic powers should take precedence over changing existing uses. By `grandfathering' existing uses of these powers, without either endorsing or disclaiming them, H. R. 7738 adheres to the committee's decision to try to assure improved future uses rather than remedy possible past abuses." H. R. Rep. No. 95-459, at 9-10 (emphases added). The Court's decision to quote this language, ante, at 239-240, is remarkable. By its terms, the quotation makes clear that the controversy Congress sought to avoid was that which would arise if Congress passed judgment on "existing uses of international economic transaction controls, and thereby the policies they reflect." Accordingly, Congress grandfathered them. It is also clear that the "existing uses" and "economic controls" and "policies" that Congress decided *259 not to review included only "what has been done to date." Subcommittee Hearings, at 167 (remarks of Rep. Bingham). Congress had no hesitation about restricting the President's authority to exercise the emergency powers that he possessed but had not yet exercised. To the contrary, as the quotation on which the Court mistakenly relies makes absolutely clear, the primary purpose of the Act was to curtail "future uses" of precisely that residual authority. Thus, it is equally remarkable for the Court to suggest that the purpose of the grandfather clause is to protect the President's authority to "respon[d] to heightened tensions with Cuba." Ante, at 240. If one thing is apparent from the legislative history of the Act, it is that Congress was not persuaded that the realities of the situation in Cuba constituted an emergency. See supra, at 247-249, 254-255. It is therefore somewhat incongruous to conclude that Congress intended to give the President greater flexibility to respond to developments in relations with Cuba than to events in other trouble spots around the world, such as Afghanistan, the Middle East, and Poland. With respect to future developments in such places, the IEEPA makes clear that the President cannot use his emergency powers to respond to "heightened tensions" unless the President has decided that a state of emergency exists, and has so declared. Nothing in the Court's opinion explains why Congress intended such unevenness in the President's authority to respond to future events; and it certainly is not self-evident why a less anomalous approach would have been "controversial."[6] *260 The full incongruity of the Court's unsupported conclusion that Congress inserted the grandfather clause to preserve the President's "flexibility to adjust existing embargoes," ante, at 236, is perhaps even more apparent with respect to trade relations with China. In 1950, trade with China was halted by a general prohibition on unlicensed property transactions similar to the general prohibition on trade with Cuba. Compare 31 CFR § 500.201(b) (1977) (China) with 31 CFR § 515.201(b) (1977) (Cuba). In 1971, however, the President nullified this general prohibition by enacting an equally broad general license. 36 Fed. Reg. 8584. In detailing the exercises of authority under § 5(b) in effect at the time of the IEEPA, the House Report chronicled the history of trade restrictions with China as follows: "On May 8, 1971, the Department licensed most subsequent transactions with China, while continuing the blocking of Chinese assets in U. S. hands before that date. This had the effect of lifting the U. S. trade embargo of China. However, the embargoes of North Korea, Vietnam, Cambodia, and Cuba continue." H. R. Rep. No. 95-459, at 6 (emphasis added). *261 No other reference to extant trade embargoes refers to a trade embargo against China. See, e. g., Subcommittee Hearings, at 108 (statement of Assistant Treasury Secretary Bergsten); House Markup, at 8 (statement of Rep. Bingham). Thus, in the eyes of Congress, the President was no longer exercising § 5(b) authorities with respect to trade with China even though a nullified general prohibition was still in effect. Congress presumably envisioned that the grandfather clause would preserve the freeze on Chinese assets, but that all subsequent controls on trade would be subject to the new IEEPA procedures. The incongruity in the Court's analysis arises because the President's position in 1977 with respect to all trade with China was exactly like his position with respect to travel-related expenditures in Cuba. If the logic of the Court's opinion in this case is correct, Congress intended the grandfather clause in the IEEPA to preserve the President's authority to reinstitute a complete trade embargo with China simply by eliminating the general license that was in effect at the time that the IEEPA was passed.[7] There is no question that the Congress that enacted the IEEPA did not imagine that the grandfather clause preserved the President's authority to transform trade relations with another country from a situation of virtually free trade to a situation of complete embargo without following the IEEPA procedures. To use the Court's words, ante, at 235, it "does undue violence to the words chosen by Congress," to say nothing of congressional *262 intent, to suggest that Congress considered the reimposition of a complete prohibition on trade with China as an "existing exercise" of § 5(b) authorities preserved by the grandfather clause. Surely, the reimposition of a complete embargo fits squarely within the "future uses" of emergency authorities to which Congress contemplated the new IEEPA procedures would apply. The situation presented in this case with respect to Cuba is no different, and it is equally clear that an increase in the embargo of Cuba is what Congress considered to be a "future use" of emergency authority not protected by the grandfather clause. III Because the restrictions on travel-related expenditures in Cuba were not promulgated in conformity with the IEEPA and because there is no coherent reason to believe that Congress intended to preserve the President's authority to institute such restrictions without complying with the IEEPA, I respectfully dissent.

All parties concede that the 1982 restrictions on travel-related expenditures in Cuba, (1982), were not promulgated in conformity with the procedural requirements of the International Emergency Economic Powers Act of 1977, Title II, 50 U.S. C. 1701-1706 (IEEPA). Thus, those restrictions are invalid unless they were authorized by 101(b) of 91 Stat. 1625, the grandfather clause of the IEEPA. Because I do not agree that the grandfather clause encompasses the exercise of Presidential power at issue here, I would affirm the judgment of the United States Court of Appeals for the First Circuit. I Congress promulgated to address problems unforeseen by the drafters of the Trading With the Enemy Act of 1917, as amended, 50 U.S. C. App. 1 et seq. (TWEA). The TWEA was one of several statutes that reflected Congress' conclusion that the President should have increased authority in times of war or national emergency in order to respond to such crisis situations with the coordinated alacrity they require. Accordingly, *245 the TWEA provided the President with a broad range of powers over international trade in time of war or "national emergency." Although TWEA provided clear procedures for enhancing the authority of a President when an emergency arose, the Act contained no similar provision to reduce the President's authority to its normal scope when the emergency subsided. Once the President had declared a state of national emergency, the emergency officially continued to exist until the President declared that it had ended. Until such a declaration of termination was made, the President enjoyed the broad authority that the TWEA conferred upon him to address the original emergency. The historical record shows that once a President had declared the existence of a national emergency, he was slow to terminate it even after the circumstances or tensions that had led to the declaration could no longer be said to pose a threat of emergency proportion to the Nation. See generally Emergency Controls on International Economic Transactions: Hearings before the Subcommittee on International Economic Policy and Trade of the House Committee on International Relations, 95th Cong., 1st Sess., 16-19 (1977) (Subcommittee Hearings) (statement of Prof. Andreas F. Lowenfeld); Because of this pattern of behavior, TWEA emergency authority operated as a one-way ratchet to enhance greatly the President's discretionary authority over foreign policy. At the time that Congress began to consider amendments to the TWEA, the United States technically faced four declared states of "emergency." Among the four were President Franklin D. Roosevelt's 1933 Bank Holiday Declaration, Presidential Proclamation No. 2040, ; President Nixon's 1970 declaration concerning a Post Office strike, Presidential Proclamation No. 3972, 3 CFR 473 (1966-1970 Comp.); and President Nixon's 1971 declaration concerning the country's balance-of-payments problems, Presidential Proclamation No. 4074, 3 CFR 60 (1971-1975 Comp.). The *246 national emergency most often invoked in connection with exercises of TWEA powers was the emergency that had been declared on December 16, 1950, by President Truman in response to the developing Korean conflict. Presidential Proclamation No. 2914, 64 Stat. A454. That Proclamation warned of the threat of Communist aggression. Because of this declaration of emergency, the President retained broad authority of indefinite duration to respond to anything that logically could be related to the general threat of the spread of Communism. There was widespread feeling that this broad grant of emergency powers conflicted with the intent of the TWEA, which sought to empower a President to respond to situations that presented an imminent threat requiring immediate response.[1] The expert witnesses who testified before the House Subcommittee expressed a general consensus that 5(b) of the TWEA inappropriately had been used as a flexible instrument of foreign policy in nonemergency situations. See, e. g., Subcommittee Hearings, at 13-14, 16 (statement of Prof. Andreas F. Lowenfeld) ("no practical constraint limiting actions taken under emergency authority to measures related to the emergency"); ("combination of legislative permissiveness and executive assertiveness over the past 40 years has created a significant shift in the functional allocations of constitutional power to regulate foreign commerce"); (suggesting *247 necessary checks and limitations on executive use of 5(b) powers); (TWEA "a prime example of the unchecked proliferation of Presidential power for purposes totally unforeseen by the creators of that power"). The Members of Congress who heard the testimony found it convincing. See, e. g., H. R. Rep. No. 95-459, p. 7 (1977) ( 5(b) "has become essentially an unlimited grant of authority"); Revision of Trading with the Enemy Act, Markup before the House Committee on International Relations, 95th Cong., 1st Sess., 8 (1977) (House Markup) (statement of Rep. Bingham) ("Section 5(b) has become a grab-bag of authorities which Presidents have been able to use to do virtually anything for which they could find no specific authority"). House Subcommittee Members also believed that some of the actions taken by the Executive Branch under the TWEA had, at most, a shaky foundation in actual emergency situations. In an exchange with Assistant Secretary of State Julius L. Katz, Subcommittee Chairman Bingham voiced his incredulity concerning the bases for certain then-effective regulations promulgated under 5(b): "MR. BINGHAM. Mr. Katz, what is the national emergency currently facing us that warrants the use of powers under the [TWEA]? "MR. KATZ. It continues to be the emergency involving the threat of Communist aggression which was declared in 1950 at the time of the aggression in Korea. "MR. BINGHAM. Are you serious? "MR. KATZ. That is the national emergency, Mr. Chairman, and it continues. "MR. BINGHAM. The emergency is the emergency that existed in 1950? "MR. KATZ. It has not been terminated." Subcommittee Hearings, at 110.[2] *248 Dissatisfied generally with the responses of spokesmen from the Executive Branch, Representative Bingham criticized the administration's lack of cooperation in the effort to amend the TWEA. He further observed: "Now I think that you have to face the facts, which are that the executive branch wants to be free to continue to act with an enormous degree of discretion on the basis that an emergency exists, although by no commonsense application of the term could the situation be called an emergency. "The threat of Communist aggression, if you will, or the threat of Communist competition which we face in the world, Mr. Katz, is a permanent situation. It is not an emergency unless you are going to define the situation that exists in the world today as a permanent emergency. I don't see how you justify use of the term. "Up until now the reaction of the subcommittee, and the reaction of the witnesses that we have had, has been that the situation that we are in is quite an incredible one, and it has to be substantially altered to try to conform with reality and with principle." It is clear that Congress intended to curtail the discretionary authority over foreign affairs that the President had accumulated because of past "emergencies" that no longer fit Congress' conception of that term. To accomplish this goal, Congress amended the TWEA and enacted the IEEPA. Congress left intact the powers that the TWEA had conferred upon the President during time of war, but removed from the TWEA the authority for Presidential action in a national emergency. As a substitute for those powers, Congress promulgated the IEEPA to confer power upon the President in national-emergency situations. The substantive reach of the President's power under the IEEPA is *249 slightly narrower than it had been under the TWEA,[3] and Congress placed several procedural restrictions on the President's exercise of the national-emergency powers, including congressional consultation, review, and termination. The prospective nature of the IEEPA left Congress with the dilemma of how to deal with existing regulations that had been promulgated under 5(b) and obviously had not been issued in accordance with the new procedures set forth in the IEEPA. There were those on the House Subcommittee considering the amendments to the TWEA who thought that there should be no grandfathering and that the existing regulations should be allowed to expire. See, e. g., Subcommittee Hearings, at 167, 168-169, 198 (remarks of Rep. Cavanaugh); ; Such an approach would have required the President to evaluate each situation in which regulations were in effect and to determine whether the need for reinstitution of the regulations justified a new declaration of national emergency. Others believed that Congress should conduct such a review and determine which restrictions were still justified by current exigencies. See H. R. Rep. No. 95-459, at 9-10. In response to two related concerns, however, the view that there was a need for some sort of grandfathering finally carried the day. The first argument supporting a grandfather clause was the desire to preserve the administration's bargaining position in dealing with countries that were the subject of existing embargoes and asset freezes. Testimony before the *250 House Subcommittee expressed the view that the President should not be forced by Congress to make unilateral concessions to countries that had been the targets of exercises of 5(b) authorities. In other words, many believed that the President should not be forced to give up "bargaining chips" without receiving something in return from the countries on the other side of the negotiations. Subcommittee Hearings, at 19 (statement of Prof. Lowenfeld) ("perhaps [the Cuba embargo] should not be terminated without a quid pro quo"); (unilateral termination of embargoes "would severely undermine the U. S. negotiating position with those countries, and our worldwide posture"); 123 Cong. Rec. 22477 (1977) (remarks of Rep. Whalen). The second argument in favor of some form of a grandfather clause was related to the first. Several of the witnesses who testified at the hearings on the bill felt that the President should not be faced with the need to declare a new national emergency in order to continue existing restrictions. Such a declaration would have foreign policy reverberations of its own, and might inject new tension into a sensitive situation in which tensions were on the decline. See, e. g., Subcommittee Hearings, at 19 (statement of Prof. Lowenfeld); It would have been incongruous, in other words, for Congress to force the President to declare new emergencies in nonemergency situations simply to avoid having to end restrictions that, for negotiating reasons, the President had concluded should not be ended unilaterally. The proponents of grandfathering voiced their desire that the grandfather clause be tailored narrowly to fit these concerns. In its early form before the Subcommittee, the clause contained two subparts, 101(b)(1) and (2), which read: "(1) any authority conferred upon the President by section 5(b) of the Trading with the Enemy Act, which is being exercised with respect to a set of circumstances on the date of enactment of this Act as a result of a national *251 emergency declared by the President before such date of enactment, may continue to be exercised with respect to such set of circumstances; and "(2) any other authority conferred upon the President by that section may be exercised to deal with the same set of circumstances." Subcommittee Working Draft of June 8, 1977, 95th Cong., 1st Sess., 101(b) (emphasis added). In response to a question about the meaning of 101(b)(2), Subcommittee Staff Director R. Roger Majak explained the purposes of the provision: "[W]ith respect to any uses of 5(b) authorities for any presently existing situation, not only could the President use those particular authorities that he is now using, but any others which are conferred by section 5(b). "So if the President is presently using asset controls toward a particular country, but is not using, let us say, currency controls, he nonetheless could use, at some later date if he so desired, currency controls with respect to the situation. "I think it boils down to a question of whether we are grandfathering a particular situation, and all the powers that may be necessary to deal with the situation, or whether we are grandfathering the particular authorities themselves and their usage." Subcommittee Hearings, at 167. Representative Bingham voiced his opposition to such a broad grandfather clause. "I have a serious question about that. It seems to me that if the President has not up to now used some authority that he has under section 5(b) in connection with those cases where 5(b) has been applied, I don't know why it should be necessary to give him authority to expand what has already been done. It is really going beyond grandfathering. *252 "It seems to me that grandfathering applies to what has been done to date, and that should be ample authority." Section 101(b)(2) was removed from the draft bill presented to the Committee.[4] I can think of few sorts of information *253 routinely found in legislative histories that would give a clearer indication that Congress intended to grandfather only the regulations and restrictions that already had been exercised.[5] When the full House Committee viewed 101(b) after 101(b)(2) had been deleted, Representative Cavanaugh sought to ascertain that the clause was drawn as narrowly as possible to include only those regulations currently in effect: "MR. CAVANAUGH. First of all, Mr. Bergsten, would it be your understanding that section 101 would strictly limit and restrict the grandfathering of powers currently being exercised under 5(b) to those specific uses of the authorities granted in 5(b) being employed as of June 1, 1977. "MR. BERGSTEN. Yes, sir. "MR. CAVANAUGH. And it would preclude the expansion by the President of the authorities that might be included in 5(b) but are not being employed as of June 1, 1977. "MR. BERGSTEN. That is right." House Markup, at 21. In explaining the effect of the grandfather clause to the full House Committee, Representative Bingham stressed that *254 the grandfather clause would leave intact "specific current uses of 5(b) authorities" and emphasized that the bill "neither condones nor condemns existing policies." It is important to emphasize that the decision to grandfather the specific uses of authorities being exercised at a certain date did not reflect congressional acknowledgment that those uses of authorities were in fact addressed to true emergency situations. To the contrary, Congress openly expressed its view that many of the grandfathered restrictions had no real basis in an emergency situation. H. R. Rep. No. 95-459, at 11 (few current uses could be justified as responding to existing emergency situations). Responding to this sentiment, Congress expressly provided annual procedures governing the continuation of grandfathered authorities that are different from the procedures that govern the continued exercise of any new restrictions entered pursuant to a new state of emergency. With respect to future exercises of emergency power, the President's decision to continue in effect the proclamation of national emergency, and the regulations promulgated thereunder, are subject to semiannual review by Congress. See 50 U.S. C. 1622(b), 1641(c). With respect to grandfathered authorities, the grandfather clause requires only that the President find continued exercise of the authority to be in the national interest. 101(b), 50 U.S. C. App. 5; Subcommittee Hearings, at 208. In this way, the Subcommittee avoided perpetuating the "phony character" of the national emergencies under which current exercises of 5(b) power were promulgated. See also, (administration would have difficulty making good-faith declaration of current national emergency with respect to Cuba); House Markup, at 3 (remarks of Rep. Bingham). In sum, the grandfather provision of the IEEPA was designed narrowly to respond to a particularized set of *255 concerns. It sought to avoid placing the President in the awkward situation either of making unilateral concessions to countries subject to restrictions or declaring a new state of emergency with respect to a country where none, in fact, existed. Congress concluded that these objectives were served fully with a grandfather clause that preserved existing restrictions, but gave the President no authority to impose new restrictions except through the new IEEPA procedures that govern the President's authority to respond to new emergencies. II The Court rejects this narrow interpretation in favor of one that loses all sight of the general legislative purpose of the IEEPA and the clear legislative intent behind the grandfather clause. To achieve its labored result, the Court invokes a series of platitudes on statutory interpretation, but ignores their application to this case. Ironically, the very pieces of legislative history that the Court cites to justify its result clearly support the contrary view. Recognizing the clear import of the legislative history, the Court begins by discovering absolute clarity in the "plain language" of the statute. The Court focuses on the fact that Congress used the term "authorities" in the grandfather clause instead of either the word "restrictions" or "prohibitions." Finding what, in its view, is a vast difference between the meaning of the first term and that of the latter two, the Court concludes that if Congress had meant "restrictions" it would have said so explicitly. Ante, at 236. But the Court's confident claim that the statutory language is without ambiguity is pure ipse dixit. The Court concedes that throughout the legislative history Congress referred to what it wanted to grandfather as "restrictions," "controls," "specific uses," "prohibitions," "existing uses," and "authorities." It is true that Congress used the word "authorities" when it drafted the statute, but there is nothing to indicate *256 that it used the term "authorities" to express any intent other than that which is made plain in the legislative history. The likely reason that the term "authorities" was used instead of a term such as "prohibitions" is simply that 5(b) authorized a President to do much more than issue prohibitions, and Congress intended to grandfather the uses of those powers as well. For example, 5(b) authorizes the President to conduct investigations of various activities and to "freeze" the assets of foreign countries and foreign nationals. At the time Congress enacted the IEEPA, the President had exercised these authorities over several countries, including Cuba, and Congress clearly intended to grandfather those exercises. Because the exercise of these powers does not fit naturally within a word such as "prohibitions," it is hardly surprising that Congress did not use that term. Thus, the short answer to the Court's question as to why Congress did not use the term "prohibitions" is simply that Congress intended to include more than mere prohibitions. There is nothing in the language of the statute to suggest, however, that Congress intended the grandfather clause to provide a President with the authority to increase the restrictions applicable to a particular country without following the IEEPA procedures. As the legislative history makes clear, when Congress grandfathered all "authorities being exercised," it sought to preserve the uses of 5(b) authorities that the President had employed in the past to address a particular situation — but no more. As Representative Bingham, a principal drafter of the bill, stated: "if the President has not up to now used some authority that he has under section 5(b) in connection with those cases where 5(b) has been applied, I don't know why it should be necessary to give him authority to expand what has already been done." Subcommittee Hearings, at 167. In its effort to downplay the clear legislative history of the grandfather clause, the Court relies on platitudes about the hazards of relying on such legislative history. The Court correctly states: *257 "Oral testimony of witnesses and individual Congressmen, unless very precisely directed to the intended meaning of particular words in a statute, can seldom be expected to be as precise as the enacted language itself. To permit what we regard as clear statutory language to be materially altered by such colloquies, which often take place before the bill has achieved its final form, would open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President." Ante, at 237. I have no disagreement with these generalities; they simply have no relevance to this case. The "colloquies" referred to involve the drafters of the Act, are directed at the precise language of the grandfather clause, and either were addressed to the bill in its final form, or aimed at getting changes in the bill to deal with precisely the problem at issue in this case. Failing to heed its own advice, the Court then would rely on the legislative history of the Act to discern a congressional purpose consistent with its interpretation of the statute. The Court concludes that the purpose of the grandfather clause was to prevent the proposed bill from becoming controversial. Once again, I have no disagreement with this general interpretation. But the Court misapprehends the aspects of the statute that Congress feared would be divisive. Congress concluded that it would be controversial for it to examine existing controls to determine whether they were justified by the exigencies of particular situations. H. R. Rep. No. 95-459, at 9-10. And Congress also felt it undesirable to force the President either to declare new national emergencies where none existed or to end restrictions without obtaining a quid pro quo. Accordingly, Congress decided that it would grandfather what the President already had done with respect to particular situations. The "controversy" that Congress hoped the grandfather clause would *258 avert had nothing to do with the President's authority to respond to future situations. The Court displays its utter confusion about this matter through its reliance on a quotation from the House Report that the Court believes supports its broad interpretation of the grandfather clause. In fact, the passage provides strong support for exactly the interpretation that the Court rejects. The passage reads: "Certain current uses of the authorities affected by H. R. 7738 are controversial — particularly the total U. S. trade embargoes of Cuba and Vietnam. The committee considered carefully whether to revise, or encourage the President to revise, such existing uses of international economic transaction controls, and thereby the policies they reflect, in this legislation. The committee decided that to revise current uses, and to improve policies and procedures that will govern future uses, in a single bill would be difficult and divisive. Committee members concluded that improved procedures for future use of emergency international economic powers should take precedence over changing existing uses. By `grandfathering' existing uses of these powers, without either endorsing or disclaiming them, H. R. 7738 adheres to the committee's decision to try to assure improved future uses rather than remedy possible past abuses." H. R. Rep. No. 95-459, at 9-10 (emphases added). The Court's decision to quote this language, ante, at 239-240, is remarkable. By its terms, the quotation makes clear that the controversy Congress sought to avoid was that which would arise if Congress passed judgment on "existing uses of international economic transaction controls, and thereby the policies they reflect." Accordingly, Congress grandfathered them. It is also clear that the "existing uses" and "economic controls" and "policies" that Congress decided *259 not to review included only "what has been done to date." Subcommittee Hearings, at 167 (remarks of Rep. Bingham). Congress had no hesitation about restricting the President's authority to exercise the emergency powers that he possessed but had not yet exercised. To the contrary, as the quotation on which the Court mistakenly relies makes absolutely clear, the primary purpose of the Act was to curtail "future uses" of precisely that residual authority. Thus, it is equally remarkable for the Court to suggest that the purpose of the grandfather clause is to protect the President's authority to "respon[d] to heightened tensions with Cuba." Ante, at 240. If one thing is apparent from the legislative history of the Act, it is that Congress was not persuaded that the realities of the situation in Cuba constituted an emergency. See It is therefore somewhat incongruous to conclude that Congress intended to give the President greater flexibility to respond to developments in relations with Cuba than to events in other trouble spots around the world, such as Afghanistan, the Middle East, and Poland. With respect to future developments in such places, the IEEPA makes clear that the President cannot use his emergency powers to respond to "heightened tensions" unless the President has decided that a state of emergency exists, and has so declared. Nothing in the Court's opinion explains why Congress intended such unevenness in the President's authority to respond to future events; and it certainly is not self-evident why a less anomalous approach would have been "controversial."[6] *260 The full incongruity of the Court's unsupported conclusion that Congress inserted the grandfather clause to preserve the President's "flexibility to adjust existing embargoes," ante, at 236, is perhaps even more apparent with respect to trade relations with China. In 1950, trade with China was halted by a general prohibition on unlicensed property transactions similar to the general prohibition on trade with Cuba. Compare 31 CFR 500.201(b) (1977) with 31 CFR 515.201(b) (1977) In 1971, however, the President nullified this general prohibition by enacting an equally broad general license. In detailing the exercises of authority under 5(b) in effect at the time of the IEEPA, the House Report chronicled the history of trade restrictions with China as follows: "On May 8, 1971, the Department licensed most subsequent transactions with China, while continuing the blocking of Chinese assets in U. S. hands before that date. This had the effect of lifting the U. S. trade embargo of China. However, the embargoes of North Korea, Vietnam, Cambodia, and Cuba continue." H. R. Rep. No. 95-459, at 6 (emphasis added). *261 No other reference to extant trade embargoes refers to a trade embargo against China. See, e. g., Subcommittee Hearings, at 108 (statement of Assistant Treasury Secretary Bergsten); House Markup, at 8 (statement of Rep. Bingham). Thus, in the eyes of Congress, the President was no longer exercising 5(b) authorities with respect to trade with China even though a nullified general prohibition was still in effect. Congress presumably envisioned that the grandfather clause would preserve the freeze on Chinese assets, but that all subsequent controls on trade would be subject to the new IEEPA procedures. The incongruity in the Court's analysis arises because the President's position in 1977 with respect to all trade with China was exactly like his position with respect to travel-related expenditures in Cuba. If the logic of the Court's opinion in this case is correct, Congress intended the grandfather clause in the IEEPA to preserve the President's authority to reinstitute a complete trade embargo with China simply by eliminating the general license that was in effect at the time that the IEEPA was passed.[7] There is no question that the Congress that enacted the IEEPA did not imagine that the grandfather clause preserved the President's authority to transform trade relations with another country from a situation of virtually free trade to a situation of complete embargo without following the IEEPA procedures. To use the Court's words, ante, at 235, it "does undue violence to the words chosen by Congress," to say nothing of congressional *262 intent, to suggest that Congress considered the reimposition of a complete prohibition on trade with China as an "existing exercise" of 5(b) authorities preserved by the grandfather clause. Surely, the reimposition of a complete embargo fits squarely within the "future uses" of emergency authorities to which Congress contemplated the new IEEPA procedures would apply. The situation presented in this case with respect to Cuba is no different, and it is equally clear that an increase in the embargo of Cuba is what Congress considered to be a "future use" of emergency authority not protected by the grandfather clause. III Because the restrictions on travel-related expenditures in Cuba were not promulgated in conformity with the IEEPA and because there is no coherent reason to believe that Congress intended to preserve the President's authority to institute such restrictions without complying with the IEEPA, I respectfully dissent.

Justice Brennan

majority

Allied Tube & Conduit Corp. v. Indian Head, Inc.

https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/

https://www.courtlistener.com/api/rest/v3/clusters/112091/

1987-106

Petitioner contends that its efforts to affect the product standard-setting process of a private association are immune from antitrust liability under the Noerr doctrine primarily because the association's standards are widely adopted into law by state and local governments. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (Noerr). The United States Court of Appeals for the Second Circuit held that Noerr immunity did not apply. We affirm. I The National Fire Protection Association (Association) is a private, voluntary organization with more than 31,500 individual and group members representing industry, labor, academia, insurers, organized medicine, firefighters, and government. The Association, among other things, publishes product standards and codes related to fire protection through a process known as "consensus standard making." One of the codes it publishes is the National Electrical Code (Code), which establishes product and performance requirements for the design and installation of electrical wiring systems. Revised every three years, the Code is the most influential electrical code in the nation. A substantial number of state and local governments routinely adopt the Code into law with little or no change; private certification laboratories, such as Underwriters Laboratories, normally will not list and label *496 an electrical product that does not meet Code standards; many underwriters will refuse to insure structures that are not built in conformity with the Code; and many electrical inspectors, contractors, and distributors will not use a product that falls outside the Code. Among the electrical products covered by the Code is electrical conduit, the hollow tubing used as a raceway to carry electrical wires through the walls and floors of buildings. Throughout the relevant period, the Code permitted using electrical conduit made of steel, and almost all conduit sold was in fact steel conduit. Starting in 1980, respondent began to offer plastic conduit made of polyvinyl chloride. Respondent claims its plastic conduit offers significant competitive advantages over steel conduit, including pliability, lower installed cost, and lower susceptibility to short circuiting. In 1980, however, there was also a scientific basis for concern that, during fires in high-rise buildings, polyvinyl chloride conduit might burn and emit toxic fumes. Respondent initiated a proposal to include polyvinyl chloride conduit as an approved type of electrical conduit in the 1981 edition of the Code. Following approval by one of the Association's professional panels, this proposal was scheduled for consideration at the 1980 annual meeting, where it could be adopted or rejected by a simple majority of the members present. Alarmed that, if approved, respondent's product might pose a competitive threat to steel conduit, petitioner, the Nation's largest producer of steel conduit, met to plan strategy with, among others, members of the steel industry, other steel conduit manufacturers, and its independent sales agents. They collectively agreed to exclude respondent's product from the 1981 Code by packing the upcoming annual meeting with new Association members whose only function would be to vote against the polyvinyl chloride proposal. Combined, the steel interests recruited 230 persons to join the Association and to attend the annual meeting to *497 vote against the proposal. Petitioner alone recruited 155 persons — including employees, executives, sales agents, the agents' employees, employees from two divisions that did not sell electrical products, and the wife of a national sales director. Petitioner and the other steel interests also paid over $100,000 for the membership, registration, and attendance expenses of these voters. At the annual meeting, the steel group voters were instructed where to sit and how and when to vote by group leaders who used walkie-talkies and hand signals to facilitate communication. Few of the steel group voters had any of the technical documentation necessary to follow the meeting. None of them spoke at the meeting to give their reasons for opposing the proposal to approve polyvinyl chloride conduit. Nonetheless, with their solid vote in opposition, the proposal was rejected and returned to committee by a vote of 394 to 390. Respondent appealed the membership's vote to the Association's Board of Directors, but the Board denied the appeal on the ground that, although the Association's rules had been circumvented, they had not been violated.[1] In October 1981, respondent brought this suit in Federal District Court, alleging that petitioner and others had unreasonably restrained trade in the electrical conduit market in violation of § 1 of the Sherman Act. 26 Stat. 209, 15 U.S. C. § 1. A bifurcated jury trial began in March 1985. Petitioner conceded that it had conspired with the other steel interests to exclude respondent's product from the Code and that it had a pecuniary interest to do so. The jury, instructed under the rule of reason that respondent carried the burden of showing that the anticompetitive effects of petitioner's actions outweighed any procompetitive benefits of standard *498 setting, found petitioner liable. In answers to special interrogatories, the jury found that petitioner did not violate any rules of the Association and acted, at least in part, based on a genuine belief that plastic conduit was unsafe, but that petitioner nonetheless did "subvert" the consensus standardmaking process of the Association. App. 23-24. The jury also made special findings that petitioner's actions had an adverse impact on competition, were not the least restrictive means of expressing petitioner's opposition to the use of polyvinyl chloride conduit in the marketplace, and unreasonably restrained trade in violation of the antitrust laws. The jury then awarded respondent damages, to be trebled, of $3.8 million for lost profits resulting from the effect that excluding polyvinyl chloride conduit from the 1981 Code had of its own force in the marketplace. No damages were awarded for injuries stemming from the adoption of the 1981 Code by governmental entities.[2] The District Court then granted a judgment n.o.v. for petitioner, reasoning that Noerr immunity applied because the Association was "akin to a legislature" and because petitioner, "by the use of methods consistent with acceptable standards of political action, genuinely intended to influence the [Association] with respect to the National Electrical Code, and to thereby influence the various state and local legislative bodies which adopt the [Code]." App. to Pet. for *499 Cert. 28a, 30a. The Court of Appeals reversed, rejecting both the argument that the Association should be treated as a "quasi-legislative" body because legislatures routinely adopt the Code and the argument that efforts to influence the Code were immune under Noerr as indirect attempts to influence state and local governments. 817 F.2d 938 (1987). We granted certiorari to address important issues regarding the application of Noerr immunity to private standard-setting associations.[3] 484 U.S. 814 (1987). II Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability under the doctrine established by Noerr; Mine Workers v. Pennington, 381 U.S. 657, 669-672 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). The scope of this protection depends, however, on the source, context, and nature of the anticompetitive restraint at issue. "[W]here a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action," those urging the governmental action enjoy absolute immunity from antitrust liability for the anticompetitive restraint. Noerr, 365 U. S., at 136; see also Pennington, supra, at 671. In addition, where, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis for antitrust liability if it is "incidental" to a valid effort to influence governmental action. Noerr, supra, at 143. The validity of such efforts, and thus the applicability of Noerr immunity, varies with the context and nature of the activity. A publicity campaign directed at the general public, seeking legislation or executive action, enjoys antitrust immunity even when the campaign employs unethical *500 and deceptive methods. Noerr, supra, at 140-141. But in less political arenas, unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations.[4]California Motor Transport, supra, at 512-513. In this case, the restraint of trade on which liability was predicated was the Association's exclusion of respondent's product from the Code, and no damages were imposed for the incorporation of that Code by any government. The relevant context is thus the standard-setting process of a private association. Typically, private standard-setting associations, like the Association in this case, include members having horizontal and vertical business relations. See generally 7 P. Areeda, Antitrust Law ¶ 1477, p. 343 (1986) (trade and standard-setting associations routinely treated as continuing conspiracies of their members). There is no doubt that the members of such associations often have economic incentives to restrain competition and that the product standards set by such associations have a serious potential for anticompetitive harm.[5] See American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 571 (1982). Agreement on a product standard is, after all, implicitly an agreement not to manufacture, distribute, or purchase certain types of products. Accordingly, private standard-setting associations have traditionally been objects of antitrust scrutiny. See, e. g., ibid.; Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656 (1961) (per curiam). See also FTC v. Indiana Federation of Dentists, *501 476 U.S. 447 (1986). When, however, private associations promulgate safety standards based on the merits of objective expert judgments and through procedures that prevent the standard-setting process from being biased by members with economic interests in stifling product competition, cf. Hydrolevel, supra, at 570-573 (noting absence of "meaningful safeguards"), those private standards can have significant procompetitive advantages. It is this potential for procompetitive benefits that has led most lower courts to apply rule-of-reason analysis to product standard-setting by private associations.[6] Given this context, petitioner does not enjoy the immunity accorded those who merely urge the government to restrain trade. We agree with the Court of Appeals that the Association cannot be treated as a "quasi-legislative" body simply because legislatures routinely adopt the Code the Association publishes. 817 F.2d, at 943-944. Whatever de facto authority the Association enjoys, no official authority has been conferred on it by any government, and the decisionmaking body of the Association is composed, at least in part, of persons with economic incentives to restrain trade. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707-708 (1962). See also id., at 706-707; Goldfarb v. Virginia State Bar, 421 U.S. 773, 791-792 (1975). "We may presume, absent a showing to the contrary, that [a government] acts in the public interest. A private party, on the other hand, may be presumed to be acting primarily on his or its own behalf." Hallie v. Eau Claire, 471 U.S. 34, 45 (1985). The dividing line between restraints resulting from governmental action and those resulting from private action *502 may not always be obvious.[7] But where, as here, the restraint is imposed by persons unaccountable to the public and without official authority, many of whom have personal financial interests in restraining competition, we have no difficulty concluding that the restraint has resulted from private action. Noerr immunity might still apply, however, if, as petitioner argues, the exclusion of polyvinyl chloride conduit from the Code, and the effect that exclusion had of its own force in the marketplace, were incidental to a valid effort to influence governmental action. Petitioner notes that the lion's share of the anticompetitive effect in this case came from the predictable adoption of the Code into law by a large number of state and local governments. See 817 F.2d, at 939, n. 1. Indeed, petitioner argues that, because state and local governments rely so heavily on the Code and lack the resources or technical expertise to second-guess it, efforts to influence the Association's standard-setting process are the most effective means of influencing legislation regulating electrical conduit. This claim to Noerr immunity has some force. The effort to influence governmental action in this case certainly cannot be characterized as a sham given the actual adoption of the 1981 Code into a number of statutes and local ordinances. Nor can we quarrel with petitioner's contention that, given the widespread adoption of the Code into *503 law, any effect the 1981 Code had in the marketplace of its own force was, in the main, incidental to petitioner's genuine effort to influence governmental action.[8] And, as petitioner persuasively argues, the claim of Noerr immunity cannot be dismissed on the ground that the conduct at issue involved no "direct" petitioning of government officials, for Noerr itself immunized a form of "indirect" petitioning. See Noerr (immunizing a publicity campaign directed at the general public on the ground that it was part of an effort to influence legislative and executive action). Nonetheless, the validity of petitioner's actions remains an issue. We cannot agree with petitioner's absolutist position that the Noerr doctrine immunizes every concerted effort that is genuinely intended to influence governmental action. If all such conduct were immunized then, for example, competitors would be free to enter into horizontal price agreements as long as they wished to propose that price as an appropriate level for governmental ratemaking or price supports. But see Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456-463 (1945). Horizontal conspiracies or boycotts designed to exact higher prices or other economic advantages from the government would be immunized on the ground that they are genuinely intended to influence the government to agree to the conspirators' terms. But see Georgia v. Evans, 316 U.S. 159 (1942). Firms could claim immunity for boycotts or horizontal output restrictions on the ground that they are intended to dramatize the plight of their industry and spur legislative action. Immunity might even be *504 claimed for anticompetitive mergers on the theory that they give the merging corporations added political clout. Nor is it necessarily dispositive that packing the Association's meeting may have been the most effective means of securing government action, for one could imagine situations where the most effective means of influencing government officials is bribery, and we have never suggested that that kind of attempt to influence the government merits protection. We thus conclude that the Noerr immunity of anticompetitive activity intended to influence the government depends not only on its impact, but also on the context and nature of the activity. Here petitioner's actions took place within the context of the standard-setting process of a private association. Having concluded that the Association is not a "quasi-legislative" body, we reject petitioner's argument that any efforts to influence the Association must be treated as efforts to influence a "quasi-legislature" and given the same wide berth accorded legislative lobbying. That rounding up supporters is an acceptable and constitutionally protected method of influencing elections does not mean that rounding up economically interested persons to set private standards must also be protected. Nor do we agree with petitioner's contention that, regardless of the Association's nonlegislative status, the effort to influence the Code should receive the same wide latitude given ethically dubious efforts to influence legislative action in the political arena, see Noerr, 365 U. S., at 140-141, simply because the ultimate aim of the effort to influence the private standard-setting process was (principally) legislative action. The ultimate aim is not dispositive. A misrepresentation to a court would not necessarily be entitled to the same antitrust immunity allowed deceptive practices in the political arena simply because the odds were very good that the court's decision would be codified — nor for that matter would misrepresentations made under oath at a legislative committee hearing in the hopes of spurring legislative action. *505 What distinguishes this case from Noerr and its progeny is that the context and nature of petitioner's activity make it the type of commercial activity that has traditionally had its validity determined by the antitrust laws themselves. True, in Noerr we immunized conduct that could be characterized as a conspiracy among railroads to destroy business relations between truckers and their customers. Noerr, supra, at 142. But we noted there: "There are no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers. Moreover, all the evidence in the record, both oral and documentary, deals with the railroads' efforts to influence the passage and enforcement of laws. Circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents discuss in one way or another the railroads' charges that heavy trucks injure the roads, violate the laws and create traffic hazards, and urge that truckers should be forced to pay a fair share of the costs of rebuilding the roads, that they should be compelled to obey the laws, and that limits should be placed upon the weight of the loads they are permitted to carry." 365 U.S., at 142-143. In light of those findings, we characterized the railroads' activity as a classic "attempt . . . to influence legislation by a campaign of publicity," an "inevitable" and "incidental" effect of which was "the infliction of some direct injury upon the interests of the party against whom the campaign is directed." Id., at 143. The essential character of such a publicity campaign was, we concluded, political, and could not be segregated from the activity's impact on business. Rather, the plaintiff's cause of action simply embraced the inherent possibility in such political fights "that one group or the other will get hurt by the arguments that are made." Id., at 144. As a political activity, special factors counseled against regulating the publicity campaign under the antitrust laws: *506 "Insofar as [the Sherman] Act sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity, and, as we have already pointed out, a publicity campaign to influence governmental action falls clearly into the category of political activity. The proscriptions of the Act, tailored as they are for the business world, are not at all appropriate for application in the political arena. Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical." Id., at 140-141 (footnote omitted). In Noerr, then, the political context and nature of the activity precluded inquiry into its antitrust validity.[9] Here the context and nature of the activity do not counsel against inquiry into its validity. Unlike the publicity campaign in Noerr, the activity at issue here did not take place in the open political arena, where partisanship is the hallmark of decisionmaking, but within the confines of a private standard-setting process. The validity of conduct within that process has long been defined and circumscribed by the antitrust laws without regard to whether the private standards are likely to be adopted into law. See supra, at 500. Indeed, because private standard-setting by associations comprising firms with horizontal and vertical business relations is permitted at all under the antitrust laws only on the *507 understanding that it will be conducted in a nonpartisan manner offering procompetitive benefits, see ibid., the standards of conduct in this context are, at least in some respects, more rigorous than the standards of conduct prevailing in the partisan political arena or in the adversarial process of adjudication. The activity at issue here thus cannot, as in Noerr, be characterized as an activity that has traditionally been regulated with extreme caution, see Noerr, 365 U. S., at 141, or as an activity that "bear[s] little if any resemblance to the combinations normally held violative of the Sherman Act," id., at 136. And petitioner did not confine itself to efforts to persuade an independent decisionmaker, cf. id., at 138, 139 (describing the immunized conduct as "mere solicitation"); rather, it organized and orchestrated the actual exercise of the Association's decisionmaking authority in setting a standard. Nor can the setting of the Association's Code be characterized as merely an exercise of the power of persuasion, for it in part involves the exercise of market power. The Association's members, after all, include consumers, distributors, and manufacturers of electrical conduit, and any agreement to exclude polyvinyl chloride conduit from the Code is in part an implicit agreement not to trade in that type of electrical conduit. Cf. id., at 136. Although one could reason backwards from the legislative impact of the Code to the conclusion that the conduct at issue here is "political," we think that, given the context and nature of the conduct, it can more aptly be characterized as commercial activity with a political impact. Just as the antitrust laws should not regulate political activities "simply because those activities have a commercial impact," id., at 141, so the antitrust laws should not necessarily immunize what are in essence commercial activities simply because they have a political impact.[10] *508 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), is not to the contrary. In that case we held that the First Amendment protected the nonviolent elements of a boycott of white merchants organized by the National Association for the Advancement of Colored People and designed to make white government and business leaders comply with a list of demands for equality and racial justice. Although the boycotters intended to inflict economic injury on the merchants, the boycott was not motivated by any desire to lessen competition or to reap economic benefits but by the aim of vindicating rights of equality and freedom lying at the heart of the Constitution, and the boycotters were consumers who did not stand to profit financially from a lessening of competition in the boycotted market. Id., at 914-915. Here, in contrast, *509 petitioner was at least partially motivated by the desire to lessen competition, and, because of petitioner's line of business, stood to reap substantial economic benefits from making it difficult for respondent to compete.[11] Thus in this case the context and nature of petitioner's efforts to influence the Code persuade us that the validity of those efforts must, despite their political impact, be evaluated under the standards of conduct set forth by the antitrust laws that govern the private standard-setting process. The antitrust validity of these efforts is not established, without more, by petitioner's literal compliance with the rules of the Association, for the hope of procompetitive benefits depends upon the existence of safeguards sufficient to prevent the standard-setting process from being biased by members with economic interests in restraining competition. An association cannot validate the anticompetitive activities of its members simply by adopting rules that fail to provide such safeguards.[12] The issue of immunity in this case thus collapses into the issue of antitrust liability. Although we do not here set forth the rules of antitrust liability governing the private standard-setting process, we hold that at least where, as here, an economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants, that *510 party enjoys no Noerr immunity from any antitrust liability flowing from the effect the standard has of its own force in the marketplace. This conclusion does not deprive state and local governments of input and information from interested individuals or organizations or leave petitioner without ample means to petition those governments. Cf. Noerr, 365 U. S., at 137-138. See also California Motor Transport, 404 U. S., at 510. Petitioner, and others concerned about the safety or competitive threat of polyvinyl chloride conduit, can, with full antitrust immunity, engage in concerted efforts to influence those governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression. To the extent state and local governments are more difficult to persuade through these other avenues, that no doubt reflects their preference for and confidence in the nonpartisan consensus process that petitioner has undermined. Petitioner remains free to take advantage of the forum provided by the standard-setting process by presenting and vigorously arguing accurate scientific evidence before a nonpartisan private standard-setting body.[13] And petitioner can avoid the strictures of the private standard-setting process by attempting to influence legislatures through other forums. *511 What petitioner may not do (without exposing itself to possible antitrust liability for direct injuries) is bias the process by, as in this case, stacking the private standard-setting body with decisionmakers sharing their economic interest in restraining competition. The judgment of the Court of Appeals is Affirmed.

Petitioner contends that its efforts to affect the product standard-setting process of a private association are immune from antitrust liability under the doctrine primarily because the association's standards are widely adopted into law by state and local governments. Eastern Railroad Presidents The United States Court of Appeals for the Second Circuit held that immunity did not apply. We affirm. I The National Fire Protection Association (Association) is a private, voluntary organization with more than 31,500 individual and group members representing industry, labor, academia, insurers, organized medicine, firefighters, and government. The Association, among other things, publishes product standards and codes related to fire protection through a process known as "consensus standard making." One of the codes it publishes is the National Electrical Code (Code), which establishes product and performance requirements for the design and installation of electrical wiring systems. Revised every three years, the Code is the most influential electrical code in the nation. A substantial number of state and local governments routinely adopt the Code into law with little or no change; private certification laboratories, such as Underwriters Laboratories, normally will not list and label *496 an electrical product that does not meet Code standards; many underwriters will refuse to insure structures that are not built in conformity with the Code; and many electrical inspectors, contractors, and distributors will not use a product that falls outside the Code. Among the electrical products covered by the Code is electrical conduit, the hollow tubing used as a raceway to carry electrical wires through the walls and floors of buildings. Throughout the relevant period, the Code permitted using electrical conduit made of steel, and almost all conduit sold was in fact steel conduit. Starting in 1980, respondent began to offer plastic conduit made of polyvinyl chloride. Respondent claims its plastic conduit offers significant competitive advantages over steel conduit, including pliability, lower installed cost, and lower susceptibility to short circuiting. In 1980, however, there was also a scientific basis for concern that, during fires in high-rise buildings, polyvinyl chloride conduit might burn and emit toxic fumes. Respondent initiated a proposal to include polyvinyl chloride conduit as an approved type of electrical conduit in the 1981 edition of the Code. Following approval by one of the Association's professional panels, this proposal was scheduled for consideration at the 1980 annual meeting, where it could be adopted or rejected by a simple majority of the members present. Alarmed that, if approved, respondent's product might pose a competitive threat to steel conduit, petitioner, the Nation's largest producer of steel conduit, met to plan strategy with, among others, members of the steel industry, other steel conduit manufacturers, and its independent sales agents. They collectively agreed to exclude respondent's product from the 1981 Code by packing the upcoming annual meeting with new Association members whose only function would be to vote against the polyvinyl chloride proposal. Combined, the steel interests recruited 230 persons to join the Association and to attend the annual meeting to *497 vote against the proposal. Petitioner alone recruited 155 persons — including employees, executives, sales agents, the agents' employees, employees from two divisions that did not sell electrical products, and the wife of a national sales director. Petitioner and the other steel interests also paid over $100,000 for the membership, registration, and attendance expenses of these voters. At the annual meeting, the steel group voters were instructed where to sit and how and when to vote by group leaders who used walkie-talkies and hand signals to facilitate communication. Few of the steel group voters had any of the technical documentation necessary to follow the meeting. None of them spoke at the meeting to give their reasons for opposing the proposal to approve polyvinyl chloride conduit. Nonetheless, with their solid vote in opposition, the proposal was rejected and returned to committee by a vote of 394 to 390. Respondent appealed the membership's vote to the Association's Board of Directors, but the Board denied the appeal on the ground that, although the Association's rules had been circumvented, they had not been violated.[1] In October 1981, respondent brought this suit in Federal District Court, alleging that petitioner and others had unreasonably restrained trade in the electrical conduit market in violation of 1 of the Sherman Act. 15 U.S. C. 1. A bifurcated jury trial began in March 1985. Petitioner conceded that it had conspired with the other steel interests to exclude respondent's product from the Code and that it had a pecuniary interest to do so. The jury, instructed under the rule of reason that respondent carried the burden of showing that the anticompetitive effects of petitioner's actions outweighed any procompetitive benefits of standard *498 setting, found petitioner liable. In answers to special interrogatories, the jury found that petitioner did not violate any rules of the Association and acted, at least in part, based on a genuine belief that plastic conduit was unsafe, but that petitioner nonetheless did "subvert" the consensus standardmaking process of the Association. App. 23-24. The jury also made special findings that petitioner's actions had an adverse impact on competition, were not the least restrictive means of expressing petitioner's opposition to the use of polyvinyl chloride conduit in the marketplace, and unreasonably restrained trade in violation of the antitrust laws. The jury then awarded respondent damages, to be trebled, of $3.8 million for lost profits resulting from the effect that excluding polyvinyl chloride conduit from the 1981 Code had of its own force in the marketplace. No damages were awarded for injuries stemming from the adoption of the 1981 Code by governmental entities.[2] The District Court then granted a judgment n.o.v. for petitioner, reasoning that immunity applied because the Association was "akin to a legislature" and because petitioner, "by the use of methods consistent with acceptable standards of political action, genuinely intended to influence the [Association] with respect to the National Electrical Code, and to thereby influence the various state and local legislative bodies which adopt the [Code]." App. to Pet. for *499 Cert. 28a, 30a. The Court of Appeals reversed, rejecting both the argument that the Association should be treated as a "quasi-legislative" body because legislatures routinely adopt the Code and the argument that efforts to influence the Code were immune under as indirect attempts to influence state and local governments. We granted certiorari to address important issues regarding the application of immunity to private standard-setting associations.[3] II Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability under the doctrine established by ; Mine ; and California Motor The scope of this protection depends, however, on the source, context, and nature of the anticompetitive restraint at issue. "[W]here a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action," those urging the governmental action enjoy absolute immunity from antitrust liability for the anticompetitive restraint. ; see also In addition, where, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis for antitrust liability if it is "incidental" to a valid effort to influence governmental action. The validity of such efforts, and thus the applicability of immunity, varies with the context and nature of the activity. A publicity campaign directed at the general public, seeking legislation or executive action, enjoys antitrust immunity even when the campaign employs unethical *500 and deceptive methods. But in less political arenas, unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations.[4]California Motor In this case, the restraint of trade on which liability was predicated was the Association's exclusion of respondent's product from the Code, and no damages were imposed for the incorporation of that Code by any government. The relevant context is thus the standard-setting process of a private association. Typically, private standard-setting associations, like the Association in this case, include members having horizontal and vertical business relations. See generally 7 P. Areeda, Antitrust Law ¶ 1477, p. 343 (trade and standard-setting associations routinely treated as continuing conspiracies of their members). There is no doubt that the members of such associations often have economic incentives to restrain competition and that the product standards set by such associations have a serious potential for anticompetitive harm.[5] See American Society of Mechanical Engineers, Agreement on a product standard is, after all, implicitly an agreement not to manufacture, distribute, or purchase certain types of products. Accordingly, private standard-setting associations have traditionally been objects of antitrust scrutiny. See, e. g., ibid.; Radiant Burners, See also When, however, private associations promulgate safety standards based on the merits of objective expert judgments and through procedures that prevent the standard-setting process from being biased by members with economic interests in stifling product competition, cf. those private standards can have significant procompetitive advantages. It is this potential for procompetitive benefits that has led most lower courts to apply rule-of-reason analysis to product standard-setting by private associations.[6] Given this context, petitioner does not enjoy the immunity accorded those who merely urge the government to restrain trade. We agree with the Court of Appeals that the Association cannot be treated as a "quasi-legislative" body simply because legislatures routinely adopt the Code the Association publishes. -944. Whatever de facto authority the Association enjoys, no official authority has been conferred on it by any government, and the decisionmaking body of the Association is composed, at least in part, of persons with economic incentives to restrain trade. See Continental Ore See also ; "We may presume, absent a showing to the contrary, that [a government] acts in the public interest. A private party, on the other hand, may be presumed to be acting primarily on his or its own behalf." The dividing line between restraints resulting from governmental action and those resulting from private action *502 may not always be obvious.[7] But where, as here, the restraint is imposed by persons unaccountable to the public and without official authority, many of whom have personal financial interests in restraining competition, we have no difficulty concluding that the restraint has resulted from private action. immunity might still apply, however, if, as petitioner argues, the exclusion of polyvinyl chloride conduit from the Code, and the effect that exclusion had of its own force in the marketplace, were incidental to a valid effort to influence governmental action. Petitioner notes that the lion's share of the anticompetitive effect in this case came from the predictable adoption of the Code into law by a large number of state and local governments. See n. 1. Indeed, petitioner argues that, because state and local governments rely so heavily on the Code and lack the resources or technical expertise to second-guess it, efforts to influence the Association's standard-setting process are the most effective means of influencing legislation regulating electrical conduit. This claim to immunity has some force. The effort to influence governmental action in this case certainly cannot be characterized as a sham given the actual adoption of the 1981 Code into a number of statutes and local ordinances. Nor can we quarrel with petitioner's contention that, given the widespread adoption of the Code into *503 law, any effect the 1981 Code had in the marketplace of its own force was, in the main, incidental to petitioner's genuine effort to influence governmental action.[8] And, as petitioner persuasively argues, the claim of immunity cannot be dismissed on the ground that the conduct at issue involved no "direct" petitioning of government officials, for itself immunized a form of "indirect" petitioning. See (immunizing a publicity campaign directed at the general public on the ground that it was part of an effort to influence legislative and executive action). Nonetheless, the validity of petitioner's actions remains an issue. We cannot agree with petitioner's absolutist position that the doctrine immunizes every concerted effort that is genuinely intended to influence governmental action. If all such conduct were immunized then, for example, competitors would be free to enter into horizontal price agreements as long as they wished to propose that price as an appropriate level for governmental ratemaking or price supports. But see 6-463 (19). Horizontal conspiracies or boycotts designed to exact higher prices or other economic advantages from the government would be immunized on the ground that they are genuinely intended to influence the government to agree to the conspirators' terms. But see Firms could claim immunity for boycotts or horizontal output restrictions on the ground that they are intended to dramatize the plight of their industry and spur legislative action. Immunity might even be *504 claimed for anticompetitive mergers on the theory that they give the merging corporations added political clout. Nor is it necessarily dispositive that packing the Association's meeting may have been the most effective means of securing government action, for one could imagine situations where the most effective means of influencing government officials is bribery, and we have never suggested that that kind of attempt to influence the government merits protection. We thus conclude that the immunity of anticompetitive activity intended to influence the government depends not only on its impact, but also on the context and nature of the activity. Here petitioner's actions took place within the context of the standard-setting process of a private association. Having concluded that the Association is not a "quasi-legislative" body, we reject petitioner's argument that any efforts to influence the Association must be treated as efforts to influence a "quasi-legislature" and given the same wide berth accorded legislative lobbying. That rounding up supporters is an acceptable and constitutionally protected method of influencing elections does not mean that rounding up economically interested persons to set private standards must also be protected. Nor do we agree with petitioner's contention that, regardless of the Association's nonlegislative status, the effort to influence the Code should receive the same wide latitude given ethically dubious efforts to influence legislative action in the political arena, see 365 U. S., simply because the ultimate aim of the effort to influence the private standard-setting process was (principally) legislative action. The ultimate aim is not dispositive. A misrepresentation to a court would not necessarily be entitled to the same antitrust immunity allowed deceptive practices in the political arena simply because the odds were very good that the court's decision would be codified — nor for that matter would misrepresentations made under oath at a legislative committee hearing in the hopes of spurring legislative action. *505 What distinguishes this case from and its progeny is that the context and nature of petitioner's activity make it the type of commercial activity that has traditionally had its validity determined by the antitrust laws themselves. True, in we immunized conduct that could be characterized as a conspiracy among railroads to destroy business relations between truckers and their customers. But we noted there: "There are no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers. Moreover, all the evidence in the record, both oral and documentary, deals with the railroads' efforts to influence the passage and enforcement of laws. Circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents discuss in one way or another the railroads' charges that heavy trucks injure the roads, violate the laws and create traffic hazards, and urge that truckers should be forced to pay a fair share of the costs of rebuilding the roads, that they should be compelled to obey the laws, and that limits should be placed upon the weight of the loads they are permitted to carry." 365 U.S., -143. In light of those findings, we characterized the railroads' activity as a classic "attempt to influence legislation by a campaign of publicity," an "inevitable" and "incidental" effect of which was "the infliction of some direct injury upon the interests of the party against whom the campaign is directed." The essential character of such a publicity campaign was, we concluded, political, and could not be segregated from the activity's impact on business. Rather, the plaintiff's cause of action simply embraced the inherent possibility in such political fights "that one group or the other will get hurt by the arguments that are made." As a political activity, special factors counseled against regulating the publicity campaign under the antitrust laws: *506 "Insofar as [the Sherman] Act sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity, and, as we have already pointed out, a publicity campaign to influence governmental action falls clearly into the category of political activity. The proscriptions of the Act, tailored as they are for the business world, are not at all appropriate for application in the political arena. Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical." In then, the political context and nature of the activity precluded inquiry into its antitrust validity.[9] Here the context and nature of the activity do not counsel against inquiry into its validity. Unlike the publicity campaign in the activity at issue here did not take place in the open political arena, where partisanship is the hallmark of decisionmaking, but within the confines of a private standard-setting process. The validity of conduct within that process has long been defined and circumscribed by the antitrust laws without regard to whether the private standards are likely to be adopted into law. See Indeed, because private standard-setting by associations comprising firms with horizontal and vertical business relations is permitted at all under the antitrust laws only on the *507 understanding that it will be conducted in a nonpartisan manner offering procompetitive benefits, see ib the standards of conduct in this context are, at least in some respects, more rigorous than the standards of conduct prevailing in the partisan political arena or in the adversarial process of adjudication. The activity at issue here thus cannot, as in be characterized as an activity that has traditionally been regulated with extreme caution, see or as an activity that "bear[s] little if any resemblance to the combinations normally held violative of the Sherman Act," And petitioner did not confine itself to efforts to persuade an independent decisionmaker, cf. ; rather, it organized and orchestrated the actual exercise of the Association's decisionmaking authority in setting a standard. Nor can the setting of the Association's Code be characterized as merely an exercise of the power of persuasion, for it in part involves the exercise of market power. The Association's members, after all, include consumers, distributors, and manufacturers of electrical conduit, and any agreement to exclude polyvinyl chloride conduit from the Code is in part an implicit agreement not to trade in that type of electrical conduit. Cf. Although one could reason backwards from the legislative impact of the Code to the conclusion that the conduct at issue here is "political," we think that, given the context and nature of the conduct, it can more aptly be characterized as commercial activity with a political impact. Just as the antitrust laws should not regulate political activities "simply because those activities have a commercial impact," so the antitrust laws should not necessarily immunize what are in essence commercial activities simply because they have a political impact.[10] *508 8 U.S. 886 is not to the contrary. In that case we held that the First Amendment protected the nonviolent elements of a boycott of white merchants organized by the National Association for the Advancement of Colored People and designed to make white government and business leaders comply with a list of demands for equality and racial justice. Although the boycotters intended to inflict economic injury on the merchants, the boycott was not motivated by any desire to lessen competition or to reap economic benefits but by the aim of vindicating rights of equality and freedom lying at the heart of the Constitution, and the boycotters were consumers who did not stand to profit financially from a lessening of competition in the boycotted market. Here, in contrast, *509 petitioner was at least partially motivated by the desire to lessen competition, and, because of petitioner's line of business, stood to reap substantial economic benefits from making it difficult for respondent to compete.[11] Thus in this case the context and nature of petitioner's efforts to influence the Code persuade us that the validity of those efforts must, despite their political impact, be evaluated under the standards of conduct set forth by the antitrust laws that govern the private standard-setting process. The antitrust validity of these efforts is not established, without more, by petitioner's literal compliance with the rules of the Association, for the hope of procompetitive benefits depends upon the existence of safeguards sufficient to prevent the standard-setting process from being biased by members with economic interests in restraining competition. An association cannot validate the anticompetitive activities of its members simply by adopting rules that fail to provide such safeguards.[12] The issue of immunity in this case thus collapses into the issue of antitrust liability. Although we do not here set forth the rules of antitrust liability governing the private standard-setting process, we hold that at least where, as here, an economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants, that *510 party enjoys no immunity from any antitrust liability flowing from the effect the standard has of its own force in the marketplace. This conclusion does not deprive state and local governments of input and information from interested individuals or organizations or leave petitioner without ample means to petition those governments. Cf. -138. See also California Motor Petitioner, and others concerned about the safety or competitive threat of polyvinyl chloride conduit, can, with full antitrust immunity, engage in concerted efforts to influence those governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression. To the extent state and local governments are more difficult to persuade through these other avenues, that no doubt reflects their preference for and confidence in the nonpartisan consensus process that petitioner has undermined. Petitioner remains free to take advantage of the forum provided by the standard-setting process by presenting and vigorously arguing accurate scientific evidence before a nonpartisan private standard-setting body.[13] And petitioner can avoid the strictures of the private standard-setting process by attempting to influence legislatures through other forums. *511 What petitioner may not do (without exposing itself to possible antitrust liability for direct injuries) is bias the process by, as in this case, stacking the private standard-setting body with decisionmakers sharing their economic interest in restraining competition. The judgment of the Court of Appeals is Affirmed.

Justice O'Connor

majority

Florida v. Bostick

https://www.courtlistener.com/opinion/112631/florida-v-bostick/

https://www.courtlistener.com/api/rest/v3/clusters/112631/

1990-113

We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus. I Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision: "`Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers, admittedly without articulable suspicion, picked out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted and explained their presence as narcotics agents on the *432 lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.'" 554 So. 2d 1153, 1154-1155 (1989), quoting 510 So. 2d 321, 322 (Fla. App. 1987) (Letts, J., dissenting in part). Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol — the equivalent of carrying a gun in a holster — but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post, at 448, is colorful, but lacks any basis in fact. Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress. The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme Court. 510 So. 2d, at 322. The *433 Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the police. 554 So. 2d, at 1154. It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that "`an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage.'" Ibid. The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff's practice of "working the buses" is unconstitutional.[*] The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see id., at 1156; but they may not engage in the same behavior on a bus. Id., at 1157. We granted certiorari, 498 U.S. 894 (1990), to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence. II The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable *434 suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit. Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., 499 U.S. 621, 628 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968): "Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion), for example, we explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Id., at 497; see id., at 523, n. 3 (REHNQUIST, J., dissenting). There is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports and has found them to be "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest." Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984). We have stated that even *435 when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see INS v. Delgado, 466 U.S. 210, 216 (1984); Rodriguez, supra, at 5-6; ask to examine the individual's identification, see Delgado, supra, at 216; Royer, supra, at 501 (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 557-558 (1980); and request consent to search his or her luggage, see Royer, supra, at 501 (plurality opinion) — as long as the police do not convey a message that compliance with their requests is required. Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from Michigan v. Chesternut, 486 U.S. 567, 573 (1988), and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not "free to leave." Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment. The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was "free to leave" rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person *436 would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter. Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were "confined" in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive. In this respect, the Court's decision in INS v. Delgado, supra, is dispositive. At issue there was the INS' practice of visiting factories at random and questioning employees to determine whether any were illegal aliens. Several INS agents would stand near the building's exits, while other agents walked through the factory questioning workers. The Court acknowledged that the workers may not have been free to leave their worksite, but explained that this was not the result of police activity: "Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers." Id., at 218. We concluded that there was no seizure because, even though the workers were not free to leave the building without being questioned, the agents' conduct should have given employees "no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." Ibid. The present case is analytically indistinguishable from Delgado. Like the workers in that case, Bostick's freedom of movement was restricted by a factor independent of police conduct — i. e., by his being a passenger on a bus. Accordingly, the "free to leave" analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This *437 formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Chesternut, supra, at 569. See also Hodari D., 499 U. S., at 628. Where the encounter takes place is one factor, but it is not the only one. And, as the Solicitor General correctly observes, an individual may decline an officer's request without fearing prosecution. See Brief for United States as Amicus Curiae 25. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. See Delgado, supra, at 216-217; Royer, 460 U. S., at 498 (plurality opinion); Brown v. Texas, 443 U.S. 47, 52-53 (1979). The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage — so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not point gnns at Bostick or otherwise threaten him and that they specifically advised Bostick that he could refuse consent. Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact — that the encounter took place on a bus — rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick's argument that he must have been seized *438 because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the "reasonable person" test presupposes an innocent person. See Royer, supra, at 519, n. 4 (BLACKMUN, J., dissenting) ("The fact that [respondent] knew the search was likely to turn up contraband is of course irrelevant; the potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person in [his] position"). Accord, Chesternut, 486 U. S., at 574 ("This `reasonable person' standard ... ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached"). The dissent characterizes our decision as holding that police may board buses and by an "intimidating show of authority," post, at 447 (emphasis added), demand of passengers their "voluntary" cooperation. That characterization is incorrect. Clearly, a bus passenger's decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant only if the cooperation is voluntary. "Consent" that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage. The dissent also attempts to characterize our decision as applying a lesser degree of constitutional protection to those individuals who travel by bus, rather than by other forms of transportation. This, too, is an erroneous characterization. Our Fourth Amendment inquiry in this case — whether a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter — applies equally to police encounters that take place on trains, planes, and city streets. It is the dissent that would single out this particular *439 mode of travel for differential treatment by adopting a per se rule that random bus searches are unconstitutional. The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado are just a few examples. As we have explained, today's decision follows logically from those decisions and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken. This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a "war on drugs." See post, at 440, 450-451. If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary. We cannot agree, however, with the Florida Supreme Court that this single factor will be dispositive in every case. We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to *440 encounters on a bus. The Florida Supreme Court erred in adopting a per se rule. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus. I Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision: "`Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers, admittedly without articulable suspicion, picked out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted and explained their presence as narcotics agents on the *432 lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.'" quoting Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol — the equivalent of carrying a gun in a holster — but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post, at 448, is colorful, but lacks any basis in fact. Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress. The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme 510 So. 2d, at The *433 Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that "`an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage.'" The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff's practice of "working the buses" is unconstitutional.[*] The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see ; but they may not engage in the same behavior on a bus. We granted certiorari, to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence. II The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable *434 suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit. Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in : "Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In for example, we explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." ; see There is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports and has found them to be "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest." We have stated that even *435 when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see ; at ; ask to examine the individual's identification, see at ; ; United ; and request consent to search his or her luggage, see — as long as the police do not convey a message that compliance with their requests is required. Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not "free to leave." Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment. The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was "free to leave" rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person *436 would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter. Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were "confined" in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive. In this respect, the Court's decision in is dispositive. At issue there was the INS' practice of visiting factories at random and questioning employees to determine whether any were illegal aliens. Several INS agents would stand near the building's exits, while other agents walked through the factory questioning workers. The Court acknowledged that the workers may not have been free to leave their worksite, but explained that this was not the result of police activity: "Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers." We concluded that there was no seizure because, even though the workers were not free to leave the building without being questioned, the agents' conduct should have given employees "no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." The present case is analytically indistinguishable from Like the workers in that case, Bostick's freedom of movement was restricted by a factor independent of police conduct — i. e., by his being a passenger on a bus. Accordingly, the "free to leave" analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This *437 formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." See also Hodari 499 U. S., at Where the encounter takes place is one factor, but it is not the only one. And, as the Solicitor General correctly observes, an individual may decline an officer's request without fearing prosecution. See Brief for United States as Amicus Curiae 25. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. See at -217; ; The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage — so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not point gnns at Bostick or otherwise threaten him and that they specifically advised Bostick that he could refuse consent. Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact — that the encounter took place on a bus — rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick's argument that he must have been seized *438 because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the "reasonable person" test presupposes an innocent person. See ("The fact that [respondent] knew the search was likely to turn up contraband is of course irrelevant; the potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person in [his] position"). Accord, The dissent characterizes our decision as holding that police may board buses and by an "intimidating show of authority," post, at 447 (emphasis added), demand of passengers their "voluntary" cooperation. That characterization is incorrect. Clearly, a bus passenger's decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant only if the cooperation is voluntary. "Consent" that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage. The dissent also attempts to characterize our decision as applying a lesser degree of constitutional protection to those individuals who travel by bus, rather than by other forms of transportation. This, too, is an erroneous characterization. Our Fourth Amendment inquiry in this case — whether a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter — applies equally to police encounters that take place on trains, planes, and city streets. It is the dissent that would single out this particular *439 mode of travel for differential treatment by adopting a per se rule that random bus searches are unconstitutional. The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, and are just a few examples. As we have explained, today's decision follows logically from those decisions and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken. This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a "war on drugs." See post, at 440, 450-451. If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary. We cannot agree, however, with the Florida Supreme Court that this single factor will be dispositive in every case. We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to *440 encounters on a bus. The Florida Supreme Court erred in adopting a per se rule. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice White

majority

United States v. Marion

https://www.courtlistener.com/opinion/108420/united-states-v-marion/

https://www.courtlistener.com/api/rest/v3/clusters/108420/

1971-030

This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment. On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc., which was engaged in the business of selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems. Allegedly, the business was fraudulently *309 conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966. On May 5, 1970, appellees filed a motion to dismiss the indictment "for failure to commence prosecution of the alleged offenses charged therein within such time as to afford [them their] rights to due process of law and to a speedy trial under the Fifth and Sixth Amendments to the Constitution of the United States." No evidence was submitted, but from the motion itself and the arguments of counsel at the hearing on the motion, it appears that Allied Enterprises had been subject to a Federal Trade Commission cease-and-desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October 1967, reporting the results of that newspaper's investigation of practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia describing his office's investigation of these firms and predicting that indictments would soon be forthcoming. Although the statements attributed to the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney's office, Allied delivered certain of its records to that office, and in an interview there appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September 1969, appellees were not informed of the grand jury's concern with them until March 1970, and the indictment was finally handed down in April. *310 Appellees moved to dismiss because the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses." They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the case and presenting it to a grand jury. No specific prejudice was claimed or demonstrated. The District Court judge dismissed the indictment for "lack of speedy prosecution" at the conclusion of the hearing and remarked that since the Government must have become aware of the relevant facts in 1967, the defense of the case "is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968."[1] *311 The United States appealed directly to this Court pursuant to 18 U.S. C. § 3731 (1964 ed., Supp. V).[2] We postponed consideration of the question of jurisdiction until the hearing on the merits of the case.[3] We now hold that the Court has jurisdiction, and on the merits we reverse the judgment of the District Court. I Prior to its recent amendment, 18 U.S. C. § 3731 (1964 ed., Supp. V) authorized an appeal to this Court *312 by the United States when in any criminal case a district court sustained "a motion in bar, when the defendant has not been put in jeopardy." It is plain to us that the appeal of the United States is within the purview of this section. Appellees had not been placed in jeopardy when the District Court rendered its judgment. The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling. The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United States v. Weller, 401 U.S. 254, 260 (1971). The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court's oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48 (b), as a ground for dismissal.[4] Our jurisdiction to hear this appeal has been satisfactorily established. *313 II Appellees do not claim that the Sixth Amendment was violated by the two-month delay between the return of the indictment and its dismissal. Instead, they claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an "accused," an event that occurred in this case only when the appellees were indicted on April 21, 1970. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been "accused" in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. "[T]he essential ingredient is orderly expedition and not mere speed." Smith v. United States, 360 U.S. 1, 10 (1959). Our attention is called to nothing in the circumstances surrounding the adoption of the Amendment indicating *314 that it does not mean what it appears to say,[5] nor is there more than marginal support for the proposition that, at the time of the adoption of the Amendment, the prevailing rule was that prosecutions would not be permitted if there had been long delay in presenting a charge.[6] The framers could hardly have selected less *315 appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. No opinions of this Court intimate support for appellees' thesis,[7] and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment's speedy trial provision where only pre-indictment delay was involved.[8] *316 Legislative efforts to implement federal and state speedy trial provisions also plainly reveal the view that these guarantees are applicable only after a person has *317 been accused of a crime. The Court has pointed out that "[a]t the common law and in the absence of special statutes of limitations the mere failure to find an indictment will not operate to discharge the accused from the offense nor will a nolle prosequi entered by the Government or the failure of the grand jury to indict." United States v. Cadarr, 197 U.S. 475, 478 (1905). Since it is "doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the *318 heads of citizens, and they have been committed for unreasonable periods, resulting in hardship," the Court noted that many States "[w]ith a view to preventing such wrong to the citizen . . . [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial" had passed statutes limiting the time within which such trial must occur after charge or indictment.[9] Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused.[10] The statutes vary greatly in substance, *319 structure, and interpretation, but a common denominator is that "[i]n no event . . . [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this." Note, The Right to a Speedy Trial, 57 Colo. L. Rev. 846, 848 (1957). No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48 (b), which has the force of law, authorizes dismissal of an indictment, information, or complaint "[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial . . . ." The rule clearly is limited to post-arrest situations.[11] Appellees' position is, therefore, at odds with longstanding legislative and judicial constructions of the *320 speedy trial provisions in both national and state constitutions. III It is apparent also that very little support for appellees' position emerges from a consideration of the purposes of the Sixth Amendment's speedy trial provision, a guarantee that this Court has termed "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v. Ewell, 383 U.S. 116, 120 (1966); see also Klopfer v. North Carolina, 386 U.S. 213, 221-226 (1967); Dickey v. Florida, 398 U.S. 30, 37-38 (1970). Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, supra; see also Smith v. Hooey, 393 U.S. 374, 377-378 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. *321 Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.[12] But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.[13] But this *322 possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case. The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United States v. Ewell, supra, at 122, "the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges." Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they "are made for the repose of society and the protection of those who may [during the limitation] . . . have lost their means of defense." Public Schools v. Walker, 9 Wall. 282, 288 (1870). These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced.[14] As this *323 Court observed in Toussie v. United States, 397 U.S. 112, 114-115 (1970): "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity." There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function. Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the *324 indictment, see Part IV, infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within the statute of limitations.[15] Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.[16] Cf. Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution.[17] Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal *325 prosecution.[18] To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases. IV In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, that transformed the appellees into "accused" defendants who are subject to the speedy trial protections of the Sixth Amendment. The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, since the indictment was brought on April 21, 1970, and dismissed on June 8, 1970. Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely *326 on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature. Reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, concurring in the result. I assume that if the three-year delay in this case had occurred after the indictment had been returned, the right to a speedy trial would have been impaired and the indictment would have to be dismissed. I disagree with the Court that the guarantee does not apply if the delay was at the pre-indictment stage of a case. From March 15, 1965, to February 6, 1967, appellees acting through Allied Enterprises, Inc., sold and installed home intercom, fire control, and burglar detection devices in the District of Columbia metropolitan area. Their business endeavors were soon met with a spate of lawsuits seeking recovery for consumer fraud and, on February 6, 1967, their brief career was ended by a cease-and-desist order entered by the Federal Trade Commission. Public notoriety continued to surround appellees' activities and, in a series of articles appearing in the Washington Post in September and October of 1967, their business was mentioned as being under investigation by the United States Attorney. The special grand jury that was impaneled on October 9, 1967, to investigate consumer fraud did not, however, return an indictment against *327 appellees. Sometime between the summer of 1968 and January 1969, appellees delivered their business records to the United States Attorney, but an indictment was not returned against them until April 21, 1970. The indictment charged some 19 counts of mail fraud, wire fraud, and transportation of falsely made securities in interstate commerce all between September 3, 1965, and January 19, 1966. Appellees moved "to dismiss the indictment for failure to commence prosecution . . . within such time as to [satisfy the] . . . rights to due process of law and to a speedy trial . . . ." The United States Attorney sought to excuse the delay, alleging that his office had been understaffed at the time and that it had given priority to other types of crimes. The District Court granted appellees' motion[1] and the United States appealed. 18 U.S. C. § 3731 (1964 ed., Supp. V). The majority says "that it is either a formal indictment or information or else the actual restraints imposed by *328 arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision . . . ." Ante, at 320. The Sixth Amendment, to be sure, states that "the accused shall enjoy the right to a speedy and public trial." But the words "the accused," as I understand them in their Sixth Amendment setting, mean only the person who has standing to complain of prosecutorial delay in seeking an indictment or filing an information. The right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pre-indictment delays as it is to post-indictment delays. Much is made of the history of the Sixth Amendment as indicating that the speedy trial guarantee had no application to pre-prosecution delays. There are two answers to that proposition. First, British courts historically did consider delay as a condition to issuance of an information. Lord Mansfield held in Rex v. Robinson, 1 Black. W. 541, 542, 96 Eng. Rep. 313 (K. B. 1765), that the issuance of an information was subject to time limitations: "If delayed, the delay must be reasonably accounted for." In Regina v. Hext, 4 Jurist 339 (Q. B. 1840), an information was refused where a whole term of court had passed since the alleged assault took place. Accord: Rex v. Marshall, 13 East 322, 104 Eng. Rep. 394 (K. B. 1811). Baron Alderson said in Regina v. Robins, 1 Cox's C. C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality: "It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the *329 charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial." Second, and more basically, the 18th century criminal prosecution at the common law was in general commenced in a completely different way from that with which we are familiar today. By the common law of England which was brought to the American colonies, the ordinary criminal prosecution was conducted by a private prosecutor, in the name of the King. In case the victim of the crime or someone interested came forward to prosecute, he retained his own counsel and had charge of the case as in the usual civil proceeding. See G. Dession, Criminal Law, Administration and Public Order 356 (1948). Procedurally, the criminal prosecution was commenced by the filing of a lawsuit, and thereafter the filing of an application for criminal prosecution or rule nisi or similar procedure calling for the defendant to show cause why he should not be imprisoned. The English common law, with which the Framers were familiar, conceived of a criminal prosecution as being commenced prior to indictment. Thus in that setting the individual charged as the defendant in a criminal proceeding could and would be an "accused" prior to formal indictment.[2] *330 The right to a speedy trial, which we have characterized "as fundamental as any of the rights secured by the Sixth Amendment," Klopfer v. North Carolina, 386 U.S. 213, 223, protects several demands of criminal justice: the prevention of undue delay and oppressive incarceration prior to trial; the reduction of anxiety and concern accompanying public accusation; and limiting the possibilities that long delay will impair the ability of an accused to defend himself. Smith v. Hooey, 393 U.S. 374, 377-378 (1969). See also People v. Prosser, 309 N.Y. 353, 356, 130 N.E.2d 891, 894 (1955). The right also serves broader interests: "The Speedy Trial Clause protects societal interests, as well as those of the accused. The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. See Ponzi v. Fessenden, 258 U.S. 254, 264 (1922). Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction." Dickey v. Florida, 398 U.S. 30, 42 (1970) (BRENNAN, J., concurring). At least some of these values served by the right to a speedy trial are not unique to any particular stage of the criminal proceeding. See Note, 43 N. Y. U. L. Rev. 722, 725-726 (1968); Note, 77 Yale L. J. 767, 780-783 (1968); Comment, 11 Ariz. L. Rev. 770, 774-776 (1969). Undue delay may be as offensive to the right to a speedy trial before as after an indictment or information. The anxiety *331 and concern attendant on public accusation may weigh more heavily upon an individual who has not yet been formally indicted or arrested for, to him, exoneration by a jury of his peers may be only a vague possibility lurking in the distant future. Indeed, the protection underlying the right to a speedy trial may be denied when a citizen is damned by clandestine innuendo and never given the chance promptly to defend himself in a court of law. Those who are accused of crime but never tried may lose their jobs or their positions of responsibility, or become outcasts in their communities. The impairment of the ability to defend oneself may become acute because of delays in the pre-indictment stage. Those delays may result in the loss of alibi witnesses, the destruction of material evidence, and the blurring of memories. At least when a person has been accused of a specific crime, he can devote his powers of recall to the events surrounding the alleged occurrences. When there is no formal accusation, however, the State may proceed methodically to build its case while the prospective defendant proceeds to lose his.[3] The duty which the Sixth Amendment places on Government officials to proceed expeditiously with criminal *332 prosecutions would have little meaning if those officials could determine when that duty was to commence. To be sure, "[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances." Beavers v. Haubert, 198 U.S. 77, 87 (1905). But it is precisely because this right is relative that we should draw the line so as not to condone illegitimate delays whether at the pre- or the post- indictment stage.[4] Our decisions do not support the limitations of the right to a speedy trial adopted in the majority's conclusion that "the [Sixth] amendment [does not extend] to *333 the period prior to arrest." Ante, at 321. In Miranda v. Arizona, 384 U.S. 436, 444 (1966), we held that it was necessary for the police to advise of the right to counsel in the pre-indictment situation where "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." That case, like the present one, dealt with one of the rights enumerated in the Sixth Amendment to which an "accused" was entitled. We were not then concerned with whether an "arrest" or an "indictment" was necessary for a person to be an "accused" and thus entitled to Sixth Amendment protections. We looked instead to the nature of the event and its effect on the rights involved. We applied the Miranda rule even though there was no "arrest," but only an examination of the suspect while he was in his bed at his boarding house, the presence of the officers making him "in custody." Orozco v. Texas, 394 U.S. 324, 327. We should follow the same approach here and hold that the right to a speedy trial is denied if there were years of unexplained and inexcusable pre-indictment delay. Dickey v. Florida, supra, similarly demonstrates the wisdom of avoiding today's mechanical approach to the application of basic constitutional guarantees. While he was in custody on an unrelated federal charge, the petitioner was identified by a witness to the robbery. Petitioner remained in federal custody, but the State did not seek to prosecute him until September 1, 1967, when he moved to dismiss the detainer warrant which had been lodged against him. An information was then filed on December 15, 1967, and petitioner was tried on February 13, 1968. Although the trial took place less than two months after the filing of the information, we held that there had been a denial of the right to a speedy trial because of the delay of more than seven years between the crime and the information. *334 In a concurring opinion, MR. JUSTICE BRENNAN discussed the broader questions raised by that case: "When is governmental delay reasonable? Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is `purposeful or oppressive,' is unjustifiable. . . . The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin. A negligent failure by the government to ensure speedy trial is virtually as damaging to the interests protected by the right as an intentional failure; when negligence is the cause, the only interest necessarily unaffected is our common concern to prevent deliberate misuse of the criminal process by public officials. Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been avoided— whether it was unnecessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect." 398 U.S., at 51-52. In the present case, two to three years elapsed between the time the District Court found that the charges could and should have been brought and the actual return of the indictment. The justifications offered were that the United States Attorney's office was "not sufficiently staffed to proceed as expeditiously" as desirable[5] and *335 that priority had been given to other cases. Appellees say that the present indictment embraces counts such as an allegedly fraudulent telephone conversation made on December 16, 1965. They argue that there is a great likelihood that the recollection of such events will be blurred or erased by the frailties of the human memory. If this were a simpler crime, I think the British precedent which I have cited would warrant dismissal of the indictment because of the speedy trial guarantee of the Sixth Amendment. But we know from experience that the nature of the crime charged here often has vast interstate aspects, the victims are often widely scattered and hard to locate, and the reconstruction of the total scheme of the fraudulent plan takes time. If we applied the simpler rule that was applied in simpler days, we would be giving extraordinary advantages to organized crime as well as others who use a farflung complicated network to perform their illegal activities. I think a three-year delay even in that kind of case goes to the edge of a permissible delay. But on the bare bones of this record I hesitate to say that the guarantee of a speedy trial has been violated. Unless appellees on remand demonstrate actual prejudice, I would agree that the prosecution might go forward. Hence I concur in the result.

This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment. On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc., which was engaged in the business of selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems. Allegedly, the business was fraudulently *309 conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966. On May 5, 1970, appellees filed a motion to dismiss the indictment "for failure to commence prosecution of the alleged offenses charged therein within such time as to afford [them their] rights to due process of law and to a speedy trial under the Fifth and Sixth Amendments to the Constitution of the United States." No evidence was submitted, but from the motion itself and the arguments of counsel at the hearing on the motion, it appears that Allied Enterprises had been subject to a Federal Trade Commission cease-and-desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October 1967, reporting the results of that newspaper's investigation of practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia describing his office's investigation of these firms and predicting that indictments would soon be forthcoming. Although the statements attributed to the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney's office, Allied delivered certain of its records to that office, and in an interview there appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September 1969, appellees were not informed of the grand jury's concern with them until March 1970, and the indictment was finally handed down in April. *3 Appellees moved to dismiss because the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses." They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the case and presenting it to a grand jury. No specific prejudice was claimed or demonstrated. The District Court judge dismissed the indictment for "lack of speedy prosecution" at the conclusion of the hearing and remarked that since the Government must have become aware of the relevant facts in 1967, the defense of the case "is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968."[1] *311 The United States appealed directly to this Court pursuant to 18 U.S. C. 3731 (1964 ed., Supp. V).[2] We postponed consideration of the question of jurisdiction until the hearing on the merits of the case.[3] We now hold that the Court has jurisdiction, and on the merits we reverse the judgment of the District Court. I Prior to its recent amendment, 18 U.S. C. 3731 (1964 ed., Supp. V) authorized an appeal to this Court *312 by the United States when in any criminal case a district court sustained "a motion in bar, when the defendant has not been put in jeopardy." It is plain to us that the appeal of the United States is within the purview of this section. Appellees had not been placed in jeopardy when the District Court rendered its judgment. The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling. The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court's oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48 (b), as a ground for dismissal.[4] Our jurisdiction to hear this appeal has been satisfactorily established. *313 II Appellees do not claim that the Sixth Amendment was violated by the two-month delay between the return of the indictment and its dismissal. Instead, they claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an "accused," an event that occurred in this case only when the appellees were indicted on April 21, 1970. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been "accused" in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. "[T]he essential ingredient is orderly expedition and not mere speed." Our attention is called to nothing in the circumstances surrounding the adoption of the Amendment indicating *314 that it does not mean what it appears to say,[5] nor is there more than marginal support for the proposition that, at the time of the adoption of the Amendment, the prevailing rule was that prosecutions would not be permitted if there had been long delay in presenting a charge.[6] The framers could hardly have selected less *315 appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. No opinions of this Court intimate support for appellees' thesis,[7] and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment's speedy trial provision where only pre-indictment delay was involved.[8] *316 Legislative efforts to implement federal and state speedy trial provisions also plainly reveal the view that these guarantees are applicable only after a person has *317 been accused of a crime. The Court has pointed out that "[a]t the common law and in the absence of special statutes of limitations the mere failure to find an indictment will not operate to discharge the accused from the offense nor will a nolle prosequi entered by the Government or the failure of the grand jury to indict." United Since it is "doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the *318 heads of citizens, and they have been committed for unreasonable periods, resulting in hardship," the Court noted that many States "[w]ith a view to preventing such wrong to the citizen [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial" had passed statutes limiting the time within which such trial must occur after charge or indictment.[9] Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused.[] The statutes vary greatly in substance, *319 structure, and interpretation, but a common denominator is that "[i]n no event [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this." Note, The Right to a Speedy Trial, 57 Colo. L. Rev. 846, 848 (1957). No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48 (b), which has the force of law, authorizes dismissal of an indictment, information, or complaint "[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial" The rule clearly is limited to post-arrest situations.[11] Appellees' position is, therefore, at odds with longstanding legislative and judicial constructions of the *320 speedy trial provisions in both national and state constitutions. III It is apparent also that very little support for appellees' position emerges from a consideration of the purposes of the Sixth Amendment's speedy trial provision, a guarantee that this Court has termed "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United ; see also ; Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in see also So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. *321 Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.[12] But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.[13] But this *322 possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case. The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United "the applicable statute of limitations is the primary guarantee against bringing overly stale criminal charges." Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they "are made for the repose of society and the protection of those who may [during the limitation] have lost their means of defense." Public These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced.[14] As this *323 Court observed in : "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity." There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function. Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the *324 indictment, see Part IV, infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within the statute of limitations.[15] Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.[16] Cf. ; However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution.[17] Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal *325 prosecution.[18] To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases. IV In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, that transformed the appellees into "accused" defendants who are subject to the speedy trial protections of the Sixth Amendment. The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, since the indictment was brought on April 21, 1970, and dismissed on June 8, 1970. Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely *326 on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature. Reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, concurring in the result. I assume that if the three-year delay in this case had occurred after the indictment had been returned, the right to a speedy trial would have been impaired and the indictment would have to be dismissed. I disagree with the Court that the guarantee does not apply if the delay was at the pre-indictment stage of a case. From March 15, 1965, to February 6, 1967, appellees acting through Allied Enterprises, Inc., sold and installed home intercom, fire control, and burglar detection devices in the District of Columbia metropolitan area. Their business endeavors were soon met with a spate of lawsuits seeking recovery for consumer fraud and, on February 6, 1967, their brief career was ended by a cease-and-desist order entered by the Federal Trade Commission. Public notoriety continued to surround appellees' activities and, in a series of articles appearing in the Washington Post in September and October of 1967, their business was mentioned as being under investigation by the United States Attorney. The special grand jury that was impaneled on October 9, 1967, to investigate consumer fraud did not, however, return an indictment against * appellees. Sometime between the summer of 1968 and January 1969, appellees delivered their business records to the United States Attorney, but an indictment was not returned against them until April 21, 1970. The indictment charged some 19 counts of mail fraud, wire fraud, and transportation of falsely made securities in interstate commerce all between September 3, 1965, and January 19, 1966. Appellees moved "to dismiss the indictment for failure to commence prosecution within such time as to [satisfy the] rights to due process of law and to a speedy trial" The United States Attorney sought to excuse the delay, alleging that his office had been understaffed at the time and that it had given priority to other types of crimes. The District Court granted appellees' motion[1] and the United States appealed. 18 U.S. C. 3731 (1964 ed., Supp. V). The majority says "that it is either a formal indictment or information or else the actual restraints imposed by *328 arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision" Ante, at 320. The Sixth Amendment, to be sure, states that "the accused shall enjoy the right to a speedy and public trial." But the words "the accused," as I understand them in their Sixth Amendment setting, mean only the person who has standing to complain of prosecutorial delay in seeking an indictment or filing an information. The right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pre-indictment delays as it is to post-indictment delays. Much is made of the history of the Sixth Amendment as indicating that the speedy trial guarantee had no application to pre-prosecution delays. There are two answers to that proposition. First, British courts historically did consider delay as a condition to issuance of an information. Lord Mansfield held in Rex v. Robinson, 1 Black. W. 541, 5, 96 Eng. Rep. 313 (K. B. 1765), that the issuance of an information was subject to time limitations: "If delayed, the delay must be reasonably accounted for." In Regina v. Hext, 4 Jurist 339 (Q. B. 1840), an information was refused where a whole term of court had passed since the alleged assault took place. Accord: Rex v. Marshall, 13 East 322, 4 Eng. Rep. 394 (K. B. 1811). Baron Alderson said in Regina v. Robins, 1 Cox's C. C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality: "It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the *329 charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial." Second, and more basically, the 18th century criminal prosecution at the common law was in general commenced in a completely different way from that with which we are familiar today. By the common law of England which was brought to the American colonies, the ordinary criminal prosecution was conducted by a private prosecutor, in the name of the King. In case the victim of the crime or someone interested came forward to prosecute, he retained his own counsel and had charge of the case as in the usual civil proceeding. See G. Dession, Criminal Law, Administration and Public Order (1948). Procedurally, the criminal prosecution was commenced by the filing of a lawsuit, and thereafter the filing of an application for criminal prosecution or rule nisi or similar procedure calling for the defendant to show cause why he should not be imprisoned. The English common law, with which the Framers were familiar, conceived of a criminal prosecution as being commenced prior to indictment. Thus in that setting the individual charged as the defendant in a criminal proceeding could and would be an "accused" prior to formal indictment.[2] *330 The right to a speedy trial, which we have characterized "as fundamental as any of the rights secured by the Sixth Amendment," protects several demands of criminal justice: the prevention of undue delay and oppressive incarceration prior to trial; the reduction of anxiety and concern accompanying public accusation; and limiting the possibilities that long delay will impair the ability of an accused to defend himself. See also The right also serves broader interests: "The Speedy Trial Clause protects societal interests, as well as those of the accused. The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. See Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction." At least some of these values served by the right to a speedy trial are not unique to any particular stage of the criminal proceeding. See Note, 43 N. Y. U. L. Rev. 722, 725-726 (1968); Note, 77 Yale L. J. 767, 780-783 (1968); Comment, Undue delay may be as offensive to the right to a speedy trial before as after an indictment or information. The anxiety *331 and concern attendant on public accusation may weigh more heavily upon an individual who has not yet been formally indicted or arrested for, to him, exoneration by a jury of his peers may be only a vague possibility lurking in the distant future. Indeed, the protection underlying the right to a speedy trial may be denied when a citizen is damned by clandestine innuendo and never given the chance promptly to defend himself in a court of law. Those who are accused of crime but never tried may lose their jobs or their positions of responsibility, or become outcasts in their communities. The impairment of the ability to defend oneself may become acute because of delays in the pre-indictment stage. Those delays may result in the loss of alibi witnesses, the destruction of material evidence, and the blurring of memories. At least when a person has been accused of a specific crime, he can devote his powers of recall to the events surrounding the alleged occurrences. When there is no formal accusation, however, the State may proceed methodically to build its case while the prospective defendant proceeds to lose his.[3] The duty which the Sixth Amendment places on Government officials to proceed expeditiously with criminal *332 prosecutions would have little meaning if those officials could determine when that duty was to commence. To be sure, "[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances." But it is precisely because this right is relative that we should draw the line so as not to condone illegitimate delays whether at the pre- or the post- indictment stage.[4] Our decisions do not support the limitations of the right to a speedy trial adopted in the majority's conclusion that "the [Sixth] amendment [does not extend] to *333 the period prior to arrest." Ante, at 321. In we held that it was necessary for the police to advise of the right to counsel in the pre-indictment situation where "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." That case, like the present one, dealt with one of the rights enumerated in the Sixth Amendment to which an "accused" was entitled. We were not then concerned with whether an "arrest" or an "indictment" was necessary for a person to be an "accused" and thus entitled to Sixth Amendment protections. We looked instead to the nature of the event and its effect on the rights involved. We applied the Miranda rule even though there was no "arrest," but only an examination of the suspect while he was in his bed at his boarding house, the presence of the officers making him "in custody." We should follow the same approach here and hold that the right to a speedy trial is denied if there were years of unexplained and inexcusable pre-indictment delay. similarly demonstrates the wisdom of avoiding today's mechanical approach to the application of basic constitutional guarantees. While he was in custody on an unrelated federal charge, the petitioner was identified by a witness to the robbery. Petitioner remained in federal custody, but the State did not seek to prosecute him until September 1, 1967, when he moved to dismiss the detainer warrant which had been lodged against him. An information was then filed on December 15, 1967, and petitioner was tried on February 13, 1968. Although the trial took place less than two months after the filing of the information, we held that there had been a denial of the right to a speedy trial because of the delay of more than seven years between the crime and the information. *334 In a concurring opinion, MR. JUSTICE BRENNAN discussed the broader questions raised by that case: "When is governmental delay reasonable? Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is `purposeful or oppressive,' is unjustifiable. The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin. A negligent failure by the government to ensure speedy trial is virtually as damaging to the interests protected by the right as an intentional failure; when negligence is the cause, the only interest necessarily unaffected is our common concern to prevent deliberate misuse of the criminal process by public officials. Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been avoided— whether it was unnecessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect." -52. In the present case, two to three years elapsed between the time the District Court found that the charges could and should have been brought and the actual return of the indictment. The justifications offered were that the United States Attorney's office was "not sufficiently staffed to proceed as expeditiously" as desirable[5] and *335 that priority had been given to other cases. Appellees say that the present indictment embraces counts such as an allegedly fraudulent telephone conversation made on December 16, 1965. They argue that there is a great likelihood that the recollection of such events will be blurred or erased by the frailties of the human memory. If this were a simpler crime, I think the British precedent which I have cited would warrant dismissal of the indictment because of the speedy trial guarantee of the Sixth Amendment. But we know from experience that the nature of the crime charged here often has vast interstate aspects, the victims are often widely scattered and hard to locate, and the reconstruction of the total scheme of the fraudulent plan takes time. If we applied the simpler rule that was applied in simpler days, we would be giving extraordinary advantages to organized crime as well as others who use a farflung complicated network to perform their illegal activities. I think a three-year delay even in that kind of case goes to the edge of a permissible delay. But on the bare bones of this record I hesitate to say that the guarantee of a speedy trial has been violated. Unless appellees on remand demonstrate actual prejudice, I would agree that the prosecution might go forward. Hence I concur in the result.

Justice Marshall

dissenting

Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co.

https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/

https://www.courtlistener.com/api/rest/v3/clusters/109076/

1973-148

This suit, brought by and in the name of respondent railroad and its wholly owned subsidiary, seeks to recover damages for the conversion and misappropriation of corporate assets allegedly committed by petitioners, Bangor Punta and its wholly owned subsidiary, during a period when the latter was the majority shareholder of the railroad. Ordinarily, of course, a corporation may seek legal redress against those who have defrauded it of its assets. And when it does so: "A corporation and its stockholders are generally to be treated as separate entities. Only under exceptional circumstances . . . can the difference be disregarded." Burnet v. Clark, 287 U.S. 410, 415 (1932). See also New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442 (1934). The Court finds such exceptional circumstances here because, in its view, any recovery had by the corporation will be a windfall to Amoskeag, the present owner of approximately 99% of the corporation's stock, which purchased most of that stock from the petitioners, the alleged wrongdoers. The Court therefore concludes that this suit must be barred under the equitable principles set forth in Home Fire Insurance Co. v. Barber, 67 Neb. 644, 93 N.W. 1024 (1903). I cannot agree. Having read the precedents relied upon by the majority, I respectfully submit that they not only do not support, but indeed directly contradict the result reached today. While purporting to rely on settled principles of equity, the Court sadly mistakes the facts of this case and the established powers of an equity court. In my view, no windfall recovery to Amoskeag is inevitable, or even likely, on the facts of this case. But even if recovery by respondents would in fact be a windfall *720 to Amoskeag, the Court disregards the interests of the railroad's creditors, as well as the substantial public interest in the continued financial viability of the Nation's railroads which have been so heavily plagued by corporate mismanagement, and ignores the powers of the court to impose equitable conditions on a corporation's recovery so as to insure that these interests are protected. The Court's decision is also inconsistent with prior decisions of this Court limiting the application of equitable defenses when they impede the vindication, through private damage actions, of the important policies of the federal antitrust laws. I The majority places primary reliance on Dean Pound's decision in Home Fire Insurance Co. v. Barber, supra. In that case, all of the shares of the plaintiff corporation had been acquired from the alleged wrongdoers after the transactions giving rise to the causes of action stated in the complaint. Since none of the corporation's shareholders held stock at the time of the alleged wrongful transactions, none had been injured thereby. Dean Pound therefore held that equity barred the corporation from pursuing a claim where none of its shareholders could complain of injury. Dean Pound thought it clear, however, that the opposite result would obtain if any of the present shareholders "are entitled to complain of the acts of the defendant and of his past management of the company; for if any of them are so entitled, there can be no doubt of the right and duty of the corporation to maintain this suit. It would be maintainable in such a case even though the wrong-doers continued to be stockholders and would share in the proceeds." 67 Neb., at 655, 93 N. W., at 1028. Cf. Capitol Wine & Spirit Corp. v. Pokrass, 277 App. Div. *721 184, 186, 98 N. Y. S. 2d 291, 293 (1950), aff'd, 302 N.Y. 734, 98 N.E.2d 704 (1951). The rationale for the distinction drawn by Dean Pound is simple enough. The sole shareholder who defrauds or mismanages his own corporation hurts only himself. For the corporation to sue him for his wrongs is simply to take money out of his right pocket and put it in his left. It is therefore appropriate for equity to intervene to pierce the corporate veil. But where there are minority shareholders, misappropriation and conversion of corporate assets injure their interests as well as the interest of the majority shareholder. The law imposes upon the directors of a corporation a fiduciary obligation to all of the corporation's shareholders, and part of that obligation is to use due care to ensure that the corporation seek redress where a majority shareholder has drained the corporation's resources for his own benefit and to the detriment of minority shareholders.[1] Indeed, minority shareholders would be entitled to bring a derivative action, on behalf of the corporation, to enforce the corporation's right to recover for the injury done to it, if the directors turned down a request to seek relief.[2] And any recovery *722 obtained in such an action would belong to the corporation, not to the minority shareholders as individuals, for the shareholder in a derivative action enforces not his own individual rights, but rights which the corporation has. See Meyer v. Fleming, 327 U.S. 161, 167 (1946); Ross v. Bernhard, 396 U.S. 531, 538 (1970); Koster v. Lumbermens Mutual Co., 330 U.S. 518, 522 (1947). These elementary principles of corporate law should control this case. Although first Bangor Punta and then Amoskeag owned the great majority of the shares of respondent railroad, the record shows that there are many minority shareholders who owned BAR stock during the period from 1960 through 1967 when the transactions underlying the railroad's complaint took place, and who still owned that stock in 1971 when the complaint was filed.[3] Any one of these minority shareholders would have had the right, during the 1960-1967 period, as well as thereafter, to bring a derivative action on behalf of the corporation against the majority shareholder for misappropriation of corporate assets. As Dean Pound states, such an action could be brought, "even though the wrongdoers continued to be stockholders and would share in the proceeds." 67 Neb., at 655, 93 N. W., at 1028. It is ironic, then, to see the Court adopt a result which bars the corporation itself from bringing a suit which a minority shareholder could have brought in the corporation's behalf. And it is peculiar, to say the least, that the law should prevent the directors of BAR from fulfilling the fiduciary obligation to minority shareholders which the law devolves upon them. Such a result not only cannot be derived from Home Fire, but is directly in conflict with its holding. *723 II Even assuming, however, that the equitable principles of Home Fire should be extended to the situation where the present majority shareholder does not own all the outstanding shares, there are other features distinguishing this case from Home Fire and calling for the recognition of the railroad's right to maintain this action. To begin with, it is not at all clear from the record that any recovery had by the railroad will in fact be a windfall to Amoskeag, its present majority shareholder. The Court relies principally on its own observation that Amoskeag was not defrauded or deceived in its transaction with petitioners, that it received full value for its money, and that it has received no injury whatsoever. See ante, at 711. The record, in my view, simply will not support these "findings." That there is no specific allegation in the complaint that Amoskeag was deceived or otherwise injured by petitioners is understandable, since this lawsuit is not brought by Amoskeag, but rather by respondent railroad in its own name. Furthermore, a fair reading of the complaint indicates that Amoskeag most likely has suffered injury. The causes of action relate primarily to transactions involving the railroad and its former majority stockholder between 1960 and 1967. Amoskeag purchased its shares from petitioners on October 2, 1969, after these events. But nowhere in the record is there any concession that, at the time of its purchase, Amoskeag was fully aware of the misuses of corporate assets alleged in the complaint. To the contrary, the complaint asserts that at the time of Amoskeag's purchase, the Interstate Commerce Commission's Bureau of Accounts was in the middle of an investigation into the relationship between the railroad and its majority shareholder. Its report, not made public until July 1971, laid bare for the first time the wrongful *724 intercorporate transactions that are the subject of the present suit and recommended that legal remedies be explored to require petitioners to pay back to the carrier assets taken without compensation and charges made where no services were performed. The plain import of the complaint is that Amoskeag did not know of these wrongful transactions prior to public disclosure of this report. In fact, an introductory paragraph of the complaint alleges: "All wrongs hereinafter complained of were discovered by BAR's new management's investigation of all facets of the inter-corporate relationships and were not previously known to the new BAR management." App. 6. At this stage in the litigation, such allegations must be accepted as true, the District Court having dismissed the suit without inquiring into the truth of any of its claims. There is accordingly no basis in the record for presuming that Amoskeag was not the victim of any deception. But even assuming that Amoskeag received close to full value for its money, it is by no means inevitable that any recovery obtained by the railroad will inure to Amoskeag's benefit, rather than to the benefit of the corporation, its creditors, and the public it aims to serve. The Court makes much of the supposed lack of power of a court of equity to impose limitations on the use BAR might make of the recovery. Ante, at 715. "Traditionally," however, "equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Brown v. Board of Education, 349 U.S. 294, 300 (1955). "A court of equity may in its discretion in the exercise of the jurisdiction committed to it grant or deny relief upon performance of a condition which will safeguard the public interest." SEC v. United States Realty & Improvement Co., 310 U.S. 434, 455 *725 (1940).[4] Indeed, if there be any doubt as to the power of a court of equity, BAR informed the District Court that the railroad would voluntarily enter into a stipulation to ensure that any recovery would be reinvested in the railroad, for upgrading the right-of-way and for new equipment, and that Amoskeag would voluntarily join the stipulation if requested. Brief for Respondents 30. Improved equipment and rights-of-way, of course, might benefit Amoskeag indirectly by increasing to some extent the value of its equity. But such expenditures would hardly bring a dollar-for-dollar increase in the price Amoskeag would receive if it were to sell its stock. The value of a solvent railroad's stock is determined by many factors—earning capacity; historical income, excluding nonrecurring items; balance sheet strength; dividend history; and condition of plant and equipment. Under an appropriate decree, only the last of these factors would be enhanced by the railroad's recovery. It is therefore not inevitable that any recovery had by the railroad would benefit its current majority shareholder and there is no basis, in any event, for deeming such a benefit a windfall. III But let us assume that the majority is correct in finding some windfall recovery to Amoskeag inevitable in this case. This is still but one of several factors which a court of equity should consider in determining whether *726 the public interest would best be served by piercing the corporate veil in order to bar this action. The public interest against windfall recoveries is no doubt a significant factor which a court of equity should consider. But in this case it is clearly outweighed by other considerations, equally deserving the recognition of a court of equity, supporting the maintenance of the railroad's action against those who have defrauded it of its assets. Equity should take into account, for example, the railroad's relationships with its creditors. BAR owes a debt of approximately $23 million, indicating almost 90% debt ownership of the enterprise. App. 7. If the allegations of the complaint are true, the conversion and misappropriation of corporate assets committed by petitioners placed the railroad close to the brink of bankruptcy, to the certain detriment of its creditors. The complaint alleges that net revenue in 1970 was a loss of approximately $1.3 million. Id., at 5. And one of the specific causes of action in the complaint is that Bangor Punta procured the declaration by BAR of a dividend which was unlawful under a mortgage bond indenture due to insufficient working capital. Id., at 15-18. Surely the corporation, as an entity independent of its shareholders, has an interest of its own in assuring that it can meet its responsibility to its creditors. And I do not see how it can do so unless it remains free to bring suit against those who have defrauded it of its assets. The Court's result, I fear, only gives added incentive to abuses of the corporate form which equity has long sought to discourage —allowing a majority shareholder to take advantage of the protections of the corporate form while bleeding the corporation to the detriment of its creditors, and then permitting the majority shareholder to sell the corporation and remain free from any liability for its wrongdoing. *727 More importantly, equity should take into account the public interest at stake in this litigation. As the Court of Appeals indicated: "The public's interest, unlike the private interest of stockholder or creditor, is not easily defined or quantified, yet it is real and cannot, we think, be overlooked in determining whether the corporation, suing in its own right, should be estopped by equitable defenses pertaining only to its controlling stockholder." 482 F.2d 865, 868 (CA1 1973). The public's interest in the financial health of railroads has long been recognized by this Court: "[R]ailways are public corporations organized for public purposes, granted valuable franchises and privileges, among which the right to take the private property of the citizen in invitum is not the least, . . . many of them are the donees of large tracts of public lands and of gifts of money by municipal corporations, and . . . they all primarily owe duties to the public of a higher nature even than that of earning large dividends for their shareholders. The business which the railroads do is of a public nature, closely affecting almost all classes in the community . . . ." United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 332-333 (1897). The same public interest has been recognized in a wide variety of legislative enactments. As early as the Transportation Act of 1920, "Congress undertook to develop and maintain, for the people of the United States, an adequate railway system. It recognized that preservation of the earning capacity, and conservation of the financial resources, of individual carriers is a matter of national concern . . . ." Texas & Pacific R. Co. v. Gulf, C. & S. F. R. Co., 270 U.S. 266, 277 (1926). Later, *728 Congress added § 77 to Chapter VIII of the Bankruptcy Act, providing that financial reorganization of ailing railroads should be achieved for the benefit of the public, and not simply in the interests of creditors of stockholders. See New Haven Inclusion Cases, 399 U.S. 392, 492 (1970). The significance of the public interest in the financial well-being of railroads should be self-evident in these times, with many of our Nation's railroads in dire financial straits and with some of the most important lines thrown into reorganization proceedings. Indeed, the prospect of large-scale railroad insolvency in the Northeast United States was deemed by Congress to present a national emergency, prompting enactment of the Regional Rail Reorganization Act of 1973, Pub. L. 93-236, 87 Stat. 985 (1974), in which the Federal Government, for the first time, committed tax dollars to a long-term commitment to preserve adequate railroad service for the Nation. As the Court of Appeals held, given this background, "it would be unrealistic to treat a railroad's attempt to secure the reparation of misappropriated assets as of concern only to its controlling stockholder." 482 F.2d, at 870. "[T]he public has a real, if inchoate, interest" in this action. Id., at 871. The Court gives short shrift, however, to the public interest. While recognizing that respondents' complaint is based primarily on federal antitrust and securities statutes designed to benefit the public, and while conceding that the statutorily designated plaintiffs are respondent corporations, the Court nevertheless holds that these plaintiffs cannot maintain this action because any recovery by Amoskeag would violate established principles of equity. Ante, at 716-717, n. 13. I cannot agree, for the public interest and the legislative purpose should always be heavily weighed by a court of equity. As this Court *729 has frequently recognized, equity should pierce the corporate veil only when necessary to serve some paramount public interest, see Schenley Corp. v. United States, 326 U.S. 432, 437 (1946); Anderson v. Abbott, 321 U.S. 349, 362 (1944), or "where it otherwise would present an obstacle to the due protection or enforcement of public or private rights." New Colonial Ice Co. v. Helvering, 292 U. S., at 442. Here, however, it is the failure to recognize the railroad's own right to maintain this suit which undercuts the public interest. The Court's result substantially impairs enforcement of the state and federal statutes upon which the railroad bases many of its claims. For example, § 10 of the Clayton Act, 15 U.S. C. § 20, relied on in two substantial counts of the complaint, provides: "No common carrier engaged in commerce shall have any dealings in securities, supplies, or other articles of commerce . . . to the amount of more than $50,000, in the aggregate, in any one year, with another corporation . . . when the said common carrier shall have upon its board of directors or as its president . . . any person who is at the same time a director [or] manager . . . of . . . such other corporation. . . unless . . . such dealings shall be with, the bidder whose bid is the most favorable to such common carrier, to be ascertained by competitive bidding . . . ." As we have earlier had occasion to note, § 10 is not an ordinary corporate conflict-of-interest statute, but is part of our Nation's antitrust laws, specifically designed to protect common carriers such as railroads. See United States v. Boston & Maine R. Co., 380 U.S. 157 (1965); Minneapolis & St. Louis R. Co. v. United States, 361 U.S. 173, 190 (1959). The purpose of § 10 "was to prohibit a *730 corporation from abusing a carrier . . . through overreaching by, or other misfeasance of, common directors, to the financial injury of the carrier and the consequent impairment of its ability to serve the public interest." 361 U.S., at 190. The private causes of action brought by respondent railroad under § 10 serve to vindicate this important congressional policy. See Klinger v. Baltimore & Ohio R. Co., 432 F.2d 506 (CA2 1970). And by barring this suit, notwithstanding the plain allegations in the complaint that the carrier as well as the public interest it serves were injured through violations of this section committed by petitioners,[5] the Court directly frustrates the ends of Congress. Indeed, the Court encourages the very kind of abuses § 10 was designed to prohibit. The majority shareholder of a carrier can convert and misappropriate its assets through improper intercorporate transactions, with the "consequent impairment of its ability to serve the public interest," and then wash its hands of and remain free from any legal liability for its statutory violation by selling off its interest.[6] *731 I would find counsel instead in this Court's opinion in Perma Life Mufflers v. International Parts Corp., 392 U.S. 134, 138-139 (1968). The Court took note in that case that "[w]e have often indicated the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes." As we recognized, "the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public policy in favor of competition. A more fastidious regard for the relative moral worth of the parties would only result in seriously undermining the usefulness of the private action as a bulwark of antitrust enforcement." These principles have even greater force here, since Amoskeag, "whatever its own lack of equity, is neither a *732 wrongdoer nor a participant in any wrong." 482 F.2d, at 870-871. In the final analysis, the Court's holding does a disservice to one of the most settled of equitable doctrines, reflected in the maxim that "[e]quity will not suffer a wrong without a remedy." Independent Wireless Tel. Co. v. Radio Corp. of America, 269 U.S. 459, 472 (1926). Because I would follow that maxim here and permit respondent railroad to maintain this action to seek redress for the wrongs allegedly done to it and to the public interest it serves, I respectfully dissent.

This suit, brought by and in the name of respondent railroad and its wholly owned subsidiary, seeks to recover damages for the conversion and misappropriation of corporate assets allegedly committed by petitioners, Bangor Punta and its wholly owned subsidiary, during a period when the latter was the majority shareholder of the railroad. Ordinarily, of course, a corporation may seek legal redress against those who have defrauded it of its assets. And when it does so: "A corporation and its stockholders are generally to be treated as separate entities. Only under exceptional circumstances can the difference be disregarded." See also New Colonial Ice The Court finds such exceptional circumstances here because, in its view, any recovery had by the corporation will be a windfall to Amoskeag, the present owner of approximately 99% of the corporation's stock, which purchased most of that stock from the petitioners, the alleged wrongdoers. The Court therefore concludes that this suit must be barred under the equitable principles set forth in Home Fire Insurance I cannot agree. Having read the precedents relied upon by the majority, I respectfully submit that they not only do not support, but indeed directly contradict the result reached today. While purporting to rely on settled principles of equity, the Court sadly mistakes the facts of this case and the established powers of an equity court. In my view, no windfall recovery to Amoskeag is inevitable, or even likely, on the facts of this case. But even if recovery by respondents would in fact be a windfall *720 to Amoskeag, the Court disregards the interests of the railroad's creditors, as well as the substantial public interest in the continued financial viability of the Nation's railroads which have been so heavily plagued by corporate mismanagement, and ignores the powers of the court to impose equitable conditions on a corporation's recovery so as to insure that these interests are protected. The Court's decision is also inconsistent with prior decisions of this Court limiting the application of equitable defenses when they impede the vindication, through private damage actions, of the important policies of the federal antitrust laws. I The majority places primary reliance on Dean Pound's decision in Home Fire Insurance In that case, all of the shares of the plaintiff corporation had been acquired from the alleged wrongdoers after the transactions giving rise to the causes of action stated in the complaint. Since none of the corporation's shareholders held stock at the time of the alleged wrongful transactions, none had been injured thereby. Dean Pound therefore held that equity barred the corporation from pursuing a claim where none of its shareholders could complain of injury. Dean Pound thought it clear, however, that the opposite result would obtain if any of the present shareholders "are entitled to complain of the acts of the defendant and of his past management of the company; for if any of them are so entitled, there can be no doubt of the right and duty of the corporation to maintain this suit. It would be maintainable in such a case even though the wrong-doers continued to be stockholders and would share in the proceeds." Cf. Capitol Wine & Spirit Corp. v. Pokrass, App. Div. *721 184, 186, 98 N. Y. S. 2d 291, 293 (1950), aff'd, The rationale for the distinction drawn by Dean Pound is simple enough. The sole shareholder who defrauds or mismanages his own corporation hurts only himself. For the corporation to sue him for his wrongs is simply to take money out of his right pocket and put it in his left. It is therefore appropriate for equity to intervene to pierce the corporate veil. But where there are minority shareholders, misappropriation and conversion of corporate assets injure their interests as well as the interest of the majority shareholder. The law imposes upon the directors of a corporation a fiduciary obligation to all of the corporation's shareholders, and part of that obligation is to use due care to ensure that the corporation seek redress where a majority shareholder has drained the corporation's resources for his own benefit and to the detriment of minority shareholders.[1] Indeed, minority shareholders would be entitled to bring a derivative action, on behalf of the corporation, to enforce the corporation's right to recover for the injury done to it, if the directors turned down a request to seek relief.[2] And any recovery *722 obtained in such an action would belong to the corporation, not to the minority shareholders as individuals, for the shareholder in a derivative action enforces not his own individual rights, but rights which the corporation has. See ; ; These elementary principles of corporate law should control this case. Although first Bangor Punta and then Amoskeag owned the great majority of the shares of respondent railroad, the record shows that there are many minority shareholders who owned BAR stock during the period from 1960 through 1967 when the transactions underlying the railroad's complaint took place, and who still owned that stock in 1971 when the complaint was filed.[3] Any one of these minority shareholders would have had the right, during the 1960-1967 period, as well as thereafter, to bring a derivative action on behalf of the corporation against the majority shareholder for misappropriation of corporate assets. As Dean Pound states, such an action could be brought, "even though the wrongdoers continued to be stockholders and would share in the proceeds." It is ironic, then, to see the Court adopt a result which bars the corporation itself from bringing a suit which a minority shareholder could have brought in the corporation's behalf. And it is peculiar, to say the least, that the law should prevent the directors of BAR from fulfilling the fiduciary obligation to minority shareholders which the law devolves upon them. Such a result not only cannot be derived from Home Fire, but is directly in conflict with its holding. *723 II Even assuming, however, that the equitable principles of Home Fire should be extended to the situation where the present majority shareholder does not own all the outstanding shares, there are other features distinguishing this case from Home Fire and calling for the recognition of the railroad's right to maintain this action. To begin with, it is not at all clear from the record that any recovery had by the railroad will in fact be a windfall to Amoskeag, its present majority shareholder. The Court relies principally on its own observation that Amoskeag was not defrauded or deceived in its transaction with petitioners, that it received full value for its money, and that it has received no injury whatsoever. See ante, at 711. The record, in my view, simply will not support these "findings." That there is no specific allegation in the complaint that Amoskeag was deceived or otherwise injured by petitioners is understandable, since this lawsuit is not brought by Amoskeag, but rather by respondent railroad in its own name. Furthermore, a fair reading of the complaint indicates that Amoskeag most likely has suffered injury. The causes of action relate primarily to transactions involving the railroad and its former majority stockholder between 1960 and 1967. Amoskeag purchased its shares from petitioners on October 2, 1969, after these events. But nowhere in the record is there any concession that, at the time of its purchase, Amoskeag was fully aware of the misuses of corporate assets alleged in the complaint. To the contrary, the complaint asserts that at the time of Amoskeag's purchase, the Interstate Commerce Commission's Bureau of Accounts was in the middle of an investigation into the relationship between the railroad and its majority shareholder. Its report, not made public until July 1971, laid bare for the first time the wrongful *724 intercorporate transactions that are the subject of the present suit and recommended that legal remedies be explored to require petitioners to pay back to the carrier assets taken without compensation and charges made where no services were performed. The plain import of the complaint is that Amoskeag did not know of these wrongful transactions prior to public disclosure of this report. In fact, an introductory paragraph of the complaint alleges: "All wrongs hereinafter complained of were discovered by BAR's new management's investigation of all facets of the inter-corporate relationships and were not previously known to the new BAR management." App. 6. At this stage in the litigation, such allegations must be accepted as true, the District Court having dismissed the suit without inquiring into the truth of any of its claims. There is accordingly no basis in the record for presuming that Amoskeag was not the victim of any deception. But even assuming that Amoskeag received close to full value for its money, it is by no means inevitable that any recovery obtained by the railroad will inure to Amoskeag's benefit, rather than to the benefit of the corporation, its creditors, and the public it aims to serve. The Court makes much of the supposed lack of power of a court of equity to impose limitations on the use BAR might make of the recovery. Ante, at 715. "Traditionally," however, "equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." "A court of equity may in its discretion in the exercise of the jurisdiction committed to it grant or deny relief upon performance of a condition which will safeguard the public interest."[4] Indeed, if there be any doubt as to the power of a court of equity, BAR informed the District Court that the railroad would voluntarily enter into a stipulation to ensure that any recovery would be reinvested in the railroad, for upgrading the right-of-way and for new equipment, and that Amoskeag would voluntarily join the stipulation if requested. Brief for Respondents 30. Improved equipment and rights-of-way, of course, might benefit Amoskeag indirectly by increasing to some extent the value of its equity. But such expenditures would hardly bring a dollar-for-dollar increase in the price Amoskeag would receive if it were to sell its stock. The value of a solvent railroad's stock is determined by many factors—earning capacity; historical income, excluding nonrecurring items; balance sheet strength; dividend history; and condition of plant and equipment. Under an appropriate decree, only the last of these factors would be enhanced by the railroad's recovery. It is therefore not inevitable that any recovery had by the railroad would benefit its current majority shareholder and there is no basis, in any event, for deeming such a benefit a windfall. III But let us assume that the majority is correct in finding some windfall recovery to Amoskeag inevitable in this case. This is still but one of several factors which a court of equity should consider in determining whether *726 the public interest would best be served by piercing the corporate veil in order to bar this action. The public interest against windfall recoveries is no doubt a significant factor which a court of equity should consider. But in this case it is clearly outweighed by other considerations, equally deserving the recognition of a court of equity, supporting the maintenance of the railroad's action against those who have defrauded it of its assets. Equity should take into account, for example, the railroad's relationships with its creditors. BAR owes a debt of approximately $23 million, indicating almost 90% debt ownership of the enterprise. App. 7. If the allegations of the complaint are true, the conversion and misappropriation of corporate assets committed by petitioners placed the railroad close to the brink of bankruptcy, to the certain detriment of its creditors. The complaint alleges that net revenue in was a loss of approximately $1.3 million. And one of the specific causes of action in the complaint is that Bangor Punta procured the declaration by BAR of a dividend which was unlawful under a mortgage bond indenture due to insufficient working capital. Surely the corporation, as an entity independent of its shareholders, has an interest of its own in assuring that it can meet its responsibility to its creditors. And I do not see how it can do so unless it remains free to bring suit against those who have defrauded it of its assets. The Court's result, I fear, only gives added incentive to abuses of the corporate form which equity has long sought to discourage —allowing a majority shareholder to take advantage of the protections of the corporate form while bleeding the corporation to the detriment of its creditors, and then permitting the majority shareholder to sell the corporation and remain free from any liability for its wrongdoing. *727 More importantly, equity should take into account the public interest at stake in this litigation. As the Court of Appeals indicated: "The public's interest, unlike the private interest of stockholder or creditor, is not easily defined or quantified, yet it is real and cannot, we think, be overlooked in determining whether the corporation, suing in its own right, should be estopped by equitable defenses pertaining only to its controlling stockholder." The public's interest in the financial health of railroads has long been recognized by this Court: "[R]ailways are public corporations organized for public purposes, granted valuable franchises and privileges, among which the right to take the private property of the citizen in invitum is not the least, many of them are the donees of large tracts of public lands and of gifts of money by municipal corporations, and they all primarily owe duties to the public of a higher nature even than that of earning large dividends for their shareholders. The business which the railroads do is of a public nature, closely affecting almost all classes in the community" United The same public interest has been recognized in a wide variety of legislative enactments. As early as the Transportation Act of 1920, "Congress undertook to develop and maintain, for the people of the United States, an adequate railway system. It recognized that preservation of the earning capacity, and conservation of the financial resources, of individual carriers is a matter of national concern" Texas & Pacific R. Later, *728 Congress added 77 to Chapter VIII of the Bankruptcy Act, providing that financial reorganization of ailing railroads should be achieved for the benefit of the public, and not simply in the interests of creditors of stockholders. See New Haven Inclusion Cases, The significance of the public interest in the financial well-being of railroads should be self-evident in these times, with many of our Nation's railroads in dire financial straits and with some of the most important lines thrown into reorganization proceedings. Indeed, the prospect of large-scale railroad insolvency in the Northeast United States was deemed by Congress to present a national emergency, prompting enactment of the Regional Rail Reorganization Act of Stat. 985 (1974), in which the Federal Government, for the first time, committed tax dollars to a long-term commitment to preserve adequate railroad service for the Nation. As the Court of Appeals held, given this background, "it would be unrealistic to treat a railroad's attempt to secure the reparation of misappropriated assets as of concern only to its controlling stockholder." "[T]he public has a real, if inchoate, interest" in this action. The Court gives short shrift, however, to the public interest. While recognizing that respondents' complaint is based primarily on federal antitrust and securities statutes designed to benefit the public, and while conceding that the statutorily designated plaintiffs are respondent corporations, the Court nevertheless holds that these plaintiffs cannot maintain this action because any recovery by Amoskeag would violate established principles of equity. Ante, at 716-717, n. 13. I cannot agree, for the public interest and the legislative purpose should always be heavily weighed by a court of equity. As this Court *729 has frequently recognized, equity should pierce the corporate veil only when necessary to serve some paramount public interest, see Schenley ; or "where it otherwise would present an obstacle to the due protection or enforcement of public or private rights." New Colonial Ice 292 U. S., at Here, however, it is the failure to recognize the railroad's own right to maintain this suit which undercuts the public interest. The Court's result substantially impairs enforcement of the state and federal statutes upon which the railroad bases many of its claims. For example, 10 of the Clayton Act, 15 U.S. C. 20, relied on in two substantial counts of the complaint, provides: "No common carrier engaged in commerce shall have any dealings in securities, supplies, or other articles of commerce to the amount of more than $50,000, in the aggregate, in any one year, with another corporation when the said common carrier shall have upon its board of directors or as its president any person who is at the same time a director [or] manager of such other corporation. unless such dealings shall be with, the bidder whose bid is the most favorable to such common carrier, to be ascertained by competitive bidding" As we have earlier had occasion to note, 10 is not an ordinary corporate conflict-of-interest statute, but is part of our Nation's antitrust laws, specifically designed to protect common carriers such as railroads. See United ; Minneapolis & St. Louis R. The purpose of 10 "was to prohibit a *730 corporation from abusing a carrier through overreaching by, or other misfeasance of, common directors, to the financial injury of the carrier and the consequent impairment of its ability to serve the public interest." 361 U.S., at The private causes of action brought by respondent railroad under 10 serve to vindicate this important congressional policy. See And by barring this suit, notwithstanding the plain allegations in the complaint that the carrier as well as the public interest it serves were injured through violations of this section committed by petitioners,[5] the Court directly frustrates the ends of Congress. Indeed, the Court encourages the very kind of abuses 10 was designed to prohibit. The majority shareholder of a carrier can convert and misappropriate its assets through improper intercorporate transactions, with the "consequent impairment of its ability to serve the public interest," and then wash its hands of and remain free from any legal liability for its statutory violation by selling off its interest.[6] *731 I would find counsel instead in this Court's opinion in Perma Life The Court took note in that case that "[w]e have often indicated the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes." As we recognized, "the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public policy in favor of competition. A more fastidious regard for the relative moral worth of the parties would only result in seriously undermining the usefulness of the private action as a bulwark of antitrust enforcement." These principles have even greater force here, since Amoskeag, "whatever its own lack of equity, is neither a *732 wrongdoer nor a participant in any wrong." -871. In the final analysis, the Court's holding does a disservice to one of the most settled of equitable doctrines, reflected in the maxim that "[e]quity will not suffer a wrong without a remedy." Independent Wireless Tel. Because I would follow that maxim here and permit respondent railroad to maintain this action to seek redress for the wrongs allegedly done to it and to the public interest it serves, I respectfully dissent.

Justice Marshall

concurring

Garner v. United States

https://www.courtlistener.com/opinion/109400/garner-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/109400/

1975-054

I agree with the Court that petitioner, having made incriminating disclosures on his income tax returns rather than having claimed the privilege against self-incrimination, cannot thereafter assert the privilege to bar the introduction of his returns in a criminal prosecution. I disagree, however, with the Court's rationale, which is far broader than is either necessary or appropriate to dispose of this case. This case ultimately turns on a simple question— whether the possibility of being prosecuted under 26 U.S. C. § 7203 for failure to make a return compels a taxpayer to make an incriminating disclosure rather than claim the privilege against self-incrimination on his return. In discussing this question, the Court notes that only a "willful" failure to make a return is punishable under § 7203, and that "a defendant could not properly be convicted for an erroneous claim of privilege asserted in good faith." Ante, at 663 n. 18. Since a good-faith erroneous assertion of the privilege does not expose a taxpayer to criminal liability, I would hold that the threat of prosecution does not compel incriminating disclosures in violation of the Fifth Amendment. The protection accorded a good-faith assertion of the privilege effectively preserves the taxpayer's freedom to choose between making incriminating disclosures and claiming his Fifth Amendment privilege, and I would affirm the judgment of the Court of Appeals for that reason. Not content to rest its decision on that ground, the Court decides that even if a good-faith erroneous assertion of the privilege could form the basis for criminal *667 liability, the threat of prosecution does not amount to compulsion. It is constitutionally sufficient, according to the Court, that a valid claim of privilege is a defense to a § 7203 prosecution. Ante, at 662-665. In so holding, the Court answers a question that by its own admission is not presented by the facts of this case. And, contrary to the implication contained in the Court's opinion, the question is one of first impression in this Court. Citing United States v. Murdock, 284 U.S. 141 (1931) (Murdock I), the Court observes that a taxpayer who claims the privilege on his return can be convicted of a § 7203 violation without having been given a preliminary ruling on the validity of his claim and a "second chance" to complete his return after his claim is rejected. The Court then leaps to the conclusion that the Fifth Amendment is satisfied as long as a valid claim of privilege is a defense to a § 7203 prosecution. I accept the proposition that a preliminary ruling is not a prerequisite to a § 7203 prosecution. But cf. Quinn v. United States, 349 U.S. 155, 165-170 (1955). But it does not follow, and Murdock I does not hold, that the absence of a preliminary ruling is of no import in considering whether a defense of good-faith assertion of the privilege is constitutionally required.[*] It is one thing to deny a good-faith defense to a witness who is given a prompt ruling on the validity of his claim of privilege and an opportunity to reconsider his refusal to testify before subjecting himself to possible punishment for contempt. See, e. g., Maness v. Meyers, 419 U.S. 449, 460-461 (1975). It would be quite another to deny a good-faith defense to someone like petitioner, who may *668 be denied a ruling on the validity of his claim of privilege until his criminal prosecution, when it is too late to reconsider. If, contrary to the undisputed fact, a taxpayer had no assurance of either a preliminary ruling or a defense of good-faith assertion of the privilege, he could claim the privilege only at the risk that an erroneous assessment of the law of self-incrimination would subject him to criminal liability. In that event, I would consider the taxpayer to have been denied the free choice to claim the privilege, and would view any incriminating disclosures on his tax return as "compelled" within the meaning of the Fifth Amendment. Only because a good-faith erroneous claim of privilege entitles a taxpayer to acquittal under § 7203 can I conclude that petitioner's disclosures are admissible against him.

I agree with the Court that petitioner, having made incriminating disclosures on his income tax returns rather than having claimed the privilege against self-incrimination, cannot thereafter assert the privilege to bar the introduction of his returns in a criminal prosecution. I disagree, however, with the Court's rationale, which is far broader than is either necessary or appropriate to dispose of this case. This case ultimately turns on a simple question— whether the possibility of being prosecuted under 26 U.S. C. 7203 for failure to make a return compels a taxpayer to make an incriminating disclosure rather than claim the privilege against self-incrimination on his return. In discussing this question, the Court notes that only a "willful" failure to make a return is punishable under 7203, and that "a defendant could not properly be convicted for an erroneous claim of privilege asserted in good faith." Ante, at 663 n. 18. Since a good-faith erroneous assertion of the privilege does not expose a taxpayer to criminal liability, I would hold that the threat of prosecution does not compel incriminating disclosures in violation of the Fifth Amendment. The protection accorded a good-faith assertion of the privilege effectively preserves the taxpayer's freedom to choose between making incriminating disclosures and claiming his Fifth Amendment privilege, and I would affirm the judgment of the Court of Appeals for that reason. Not content to rest its decision on that ground, the Court decides that even if a good-faith erroneous assertion of the privilege could form the basis for criminal *667 liability, the threat of prosecution does not amount to compulsion. It is constitutionally sufficient, according to the Court, that a valid claim of privilege is a defense to a 7203 prosecution. Ante, at 662-665. In so holding, the Court answers a question that by its own admission is not presented by the facts of this case. And, contrary to the implication contained in the Court's opinion, the question is one of first impression in this Court. Citing United the Court observes that a taxpayer who claims the privilege on his return can be convicted of a 7203 violation without having been given a preliminary ruling on the validity of his claim and a "second chance" to complete his return after his claim is rejected. The Court then leaps to the conclusion that the Fifth Amendment is satisfied as long as a valid claim of privilege is a defense to a 7203 prosecution. I accept the proposition that a preliminary ruling is not a prerequisite to a 7203 prosecution. But cf. But it does not follow, and Murdock I does not hold, that the absence of a preliminary ruling is of no import in considering whether a defense of good-faith assertion of the privilege is constitutionally required.[*] It is one thing to deny a good-faith defense to a witness who is given a prompt ruling on the validity of his claim of privilege and an opportunity to reconsider his refusal to testify before subjecting himself to possible punishment for contempt. See, e. g., It would be quite another to deny a good-faith defense to someone like petitioner, who may *668 be denied a ruling on the validity of his claim of privilege until his criminal prosecution, when it is too late to reconsider. If, contrary to the undisputed fact, a taxpayer had no assurance of either a preliminary ruling or a defense of good-faith assertion of the privilege, he could claim the privilege only at the risk that an erroneous assessment of the law of self-incrimination would subject him to criminal liability. In that event, I would consider the taxpayer to have been denied the free choice to claim the privilege, and would view any incriminating disclosures on his tax return as "compelled" within the meaning of the Fifth Amendment. Only because a good-faith erroneous claim of privilege entitles a taxpayer to acquittal under 7203 can I conclude that petitioner's disclosures are admissible against him.

Justice Stevens

concurring

Solorio v. United States

https://www.courtlistener.com/opinion/111948/solorio-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/111948/

1986-153

Today's unnecessary overruling of precedent is most unwise. The opinion of the United States Court of Military Appeals demonstrates that petitioner's offenses were sufficiently "service connected" to confer jurisdiction on the military tribunal. Unless this Court disagrees with that determination — and I would be most surprised to be told that it does — it has no business reaching out to reexamine the decisions in O'Callahan v. Parker, 395 U.S. 258 (1969), and Relford v. Commandant, U. S. Disciplinary Barracks, 401 U.S. 355 (1971). While there might be some dispute about the exact standard to be applied in deciding whether to overrule prior decisions, I had thought that we all could agree that such drastic action is only appropriate when essential to *452 the disposition of a case or controversy before the Court.[*] The fact that any five Members of the Court have the power to reconsider settled precedents at random, does not make that practice legitimate. For the reasons stated by the Court of Military Appeals, I agree that its judgment should be affirmed.

Today's unnecessary overruling of precedent is most unwise. The opinion of the United States Court of Military Appeals demonstrates that petitioner's offenses were sufficiently "service connected" to confer jurisdiction on the military tribunal. Unless this Court disagrees with that determination — and I would be most surprised to be told that it does — it has no business reaching out to reexamine the decisions in and While there might be some dispute about the exact standard to be applied in deciding whether to overrule prior decisions, I had thought that we all could agree that such drastic action is only appropriate when essential to *452 the disposition of a case or controversy before the Court.[*] The fact that any five Members of the Court have the power to reconsider settled precedents at random, does not make that practice legitimate. For the reasons stated by the Court of Military Appeals, I agree that its judgment should be affirmed.

Justice Rehnquist

majority

Herweg v. Ray

https://www.courtlistener.com/opinion/110648/herweg-v-ray/

https://www.courtlistener.com/api/rest/v3/clusters/110648/

1981-041

Last Term in Schweiker v. Gray Panthers, 453 U.S. 34, 49-50 (1981), we upheld the validity of federal Medicaid regulations that permit "deeming" of income between spouses in those States that have exercised the so-called "§ 209(b) option" provided for in the Social Security Act, 79 Stat. 343, as amended, 42 U.S. C. § 1396 et seq. (1976 ed. and Supp. III). "Deeming," in the parlance of the Social Security laws and regulations, means that a State determines eligibility by assuming that a portion of the spouse's income is "available" to the applicant. Because an individual's eligibility for Medicaid benefits depends in part on the financial resources that are "available" to him, "[d]eeming . . . has the effect of reducing both the number of eligible individuals and the amount of assistance paid to those who qualify." Schweiker v. Gray Panthers, supra, at 36. We rejected contentions that these regulations were arbitrary or capricious and that the regulations were inconsistent with § 1902(a)(17) of the Social Security Act, 42 U.S. C. § 1396a(a)(17).[1] 453 U. S., at 43. In *268 the present case, we are called upon to decide to what extent the State of Iowa, an "SSI State," may consider the income of the institutionalized Medicaid applicant's noninstitutionalized spouse in determining eligibility for Medicaid. As we explained in greater detail in Gray Panthers, supra, Medicaid as originally enacted "required participating States to provide medical assistance to `categorically needy' individuals who received cash payments under one of four welfare programs established elsewhere in the [Social Security] Act." Id., at 37. This program was restructured in 1972 by Congress, when it replaced three of the four categorical programs with Supplemental Security Income for the Aged, Blind, and Disabled (SSI), 42 U.S. C. § 1381 et seq. (1976 ed. and Supp. III). Fearing that some States might withdraw from the Medicaid program rather than bear the increased costs imposed by the restructuring, Congress offered the States the "§ 209(b) option." 42 U.S. C. § 1396a(f). Under the § 209(b) option, the States may elect to provide Medicaid assistance only to those individuals who would have been eligible under the State's Medicaid plan in effect on January 1, 1972. In other words, the § 209(b) option allows the States to avoid the effect of the link between the SSI and Medicaid programs: States may become either "§ 209(b) States" or "SSI States." If a State participates in the Medicaid program without exercising the § 209(b) option, the State is required to make Medicaid assistance available to all recipients of SSI benefits. 42 U.S. C. § 1396a(a)(10)(A); 42 CFR § 435.120 (1980).[2] SSI States, however, are not limited to providing Medicaid benefits to SSI recipients. The Medicaid program offers participating States the option of providing Medicaid assistance *269 to certain other groups of individuals, see 42 U.S. C. § 1396(a)(10)(C), one of which is the "optional categorically needy." See 42 CFR §§ 435.200-435.231 (1980).[3] Included among the "optional categorically needy," are (1) individuals who would be eligible for, but for some reason are not receiving, SSI benefits and (2) individuals who would be eligible for SSI benefits but for their institutionalized status. 42 CFR §§ 435.210-435.211 (1980). With regard to the "optional categorically needy," the Secretary's regulations require the States to "deem" the income and resources of spouses who share the same household. 42 CFR § 435.723(b) (1980). Where both spouses are eligible for Medicaid, the States must "deem" income for the first six months after the spouses cease to live together. After this 6-month period, the States may consider only the income and resources actually contributed by one spouse to the other. § 435.723(c). If only one spouse is eligible for Medicaid, a similar rule applies but the time period is one month instead of six. § 435.723(d).[4] In effect, § 435.723 places time limitations *270 on the States' ability to consider the spouse's income as "available" to the applicant after the spouses cease to live together. The question addressed by the lower courts, and now presented for our decision, is whether this regulation is a permissible exercise of the Secretary's authority under the Act to define what income is "available." I Petitioner Elvina Herweg has been in a comatose state since August 1976 as a result of two cerebral hemorrhages. When she was placed in a long-term care facility, her husband, petitioner Darrell Herweg, applied for Medicaid assistance on Elvina's behalf. Elvina does not receive SSI benefits, although the parties and the United States as amicus curiae agree that she is eligible to receive such benefits.[5] Iowa applied its own formula to determine Elvina's eligibility for Medicaid and to ascertain the amount Darrell would be required to contribute toward his wife's care. This formula was based on the income Darrell earned as a butcher and on standard living allowances allowed Darrell and his three children living at home. In other words, Iowa was "deeming," or attributing, income earned by one spouse to the other. Iowa, however, was deeming in a manner inconsistent with the Secretary's regulations, which place time limitations upon the States' ability to consider as available to the applicant his spouse's income where the spouses do not share the same household. Supra, at 269 and this page, and n. 4. Because Elvina was institutionalized and because Darrell is not *271 eligible for Medicaid, the Secretary's regulations prohibit Iowa from considering Darrell's income after one month from the time the couple ceased to live together. See 42 CFR § 435.723(d) (1980). Petitioners filed the instant suit in the United States District Court for the Southern District of Iowa challenging Iowa's "deeming" of the income of a Medicaid applicant's spouse.[6] After certifying a class of plaintiffs,[7] the District Court held that § 1902(a)(17) of the Social Security Act, 42 U.S. C. § 1396a(a)(17), required Iowa's procedures to "provide for a factual determination in each instance of the amount of the spouses income which is in fact reasonably available for the support of the institutionalized spouse. . . . Such determination must give due consideration to the individual obligations and the particular needs of each spouse and family." 443 F. Supp. 1315, 1319 (1978). In interpreting § 1902(a)(17), the District Court concluded that " `deeming' is contrary to congressional intent whether income of the noninstitutionalized spouse is deemed available or unavailable." Id., at 1320. The District Court noted that the predecessor to 42 CFR 435.723 (1980)[8] was inconsistent with its interpretation of § 1902(a)(17). In the District Court's view, therefore, the Secretary's regulation was inconsistent with *272 § 1902(a)(17) because the regulation disabled the States in certain instances from considering the spouses income as available to the applicant. In response to this order, Iowa adopted a procedure for making individualized factual determinations of the amount of income available to an institutionalized spouse. The District Court approved this plan and petitioners appealed. The Court of Appeals for the Eighth Circuit affirmed by an equally divided Court. 619 F.2d 1265 (1980) (en banc). We reverse. II Although Elvina Herweg does not receive SSI benefits, the class certified without objection by the District Court includes SSI recipients. We therefore construe the order entered by the District Court, and the plan adopted by Iowa in response, as applying both to SSI recipients and to the optional categorically needy. A With regard to recipients of SSI benefits, the District Court's order clearly conflicts with § 1902(a)(10)(A) of the Social Security Act, 42 U.S. C. § 1396a(a)(10)(A), which requires States not having exercised the § 209(b) option to provide Medicaid assistance to all SSI recipients.[9] 42 CFR § 435.120 (1980). See Beltran v. Myers, 451 U.S. 625, 626, n. 3 (1981). The SSI program, contained in Title XVI of the Social Security Act, 42 U.S. C. § 1382 et seq. (1976 ed. and Supp. III), contains its own eligibility provisions. See, e. g., 42 U.S. C. §§ 1382(a)(1), 1382c(b), (f)(1). Pursuant to the District Court's order, however, Iowa is permitted to deny *273 Medicaid benefits to institutionalized SSI recipients if, after making an individualized factual determination, Iowa concludes that the income of the SSI recipient's spouse should be considered available even though it was not actually contributed. Because Congress has clearly spoken in this regard, to the extent it permits Iowa to deny Medicaid assistance to SSI recipients, the District Court's order cannot stand.[10] In requiring individualized determinations of income available to the Medicaid applicant, the District Court held that the Secretary has exceeded his authority in permitting any "deeming" whatsoever. In Schweiker v. Gray Panthers, 453 U. S., at 45, however, we held that Congress intended to permit a state Medicaid plan to deem the income from the applicant's spouse as part of the available income which the state plan may consider in determining eligibility. Thus, to the extent that the District Court's order forbids deeming under any circumstances, the order conflicts with our decision in Gray Panthers. B The issue that remains, therefore, is whether § 1902(a)(17) precludes the Secretary from promulgating regulations that impose time limitations upon the States' ability to consider the income of the institutionalized applicant's spouse. *274 Relying on § 1902(a)(17)(D),[11] respondents argue that the Secretary has exceeded his authority in placing time limitations upon the States' authority to consider the financial responsibility of spouses. Subsection (17)(D), respondents argue, evidences Congress' intent to permit the States to consider the financial responsibility of spouses and parents. Nothing in the statute or the legislative history,[12] respondents contend, suggests that Congress intended to prevent the States from enforcing their financial responsibility policies simply because the Medicaid applicant is institutionalized. We think, however, that respondents overemphasize the effect of subsection (17)(D). That provision may not be read independently of subsection (17)(B). Subsection (17)(B) provides that participating States must grant benefits to eligible individuals "taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant." 42 U.S. C. § 1396a(a)(17)(B) (emphasis added). In Gray Panthers, we recognized that subsection (17)(B) delegates to the Secretary broad authority to prescribe standards setting eligibility requirements for state Medicaid plans. In view of Congress' explicit delegation of authority to give substance to the meaning of "available," the Secretary's definition of the term is " `entitled to more than mere deference or weight.' " *275 Schweiker v. Gray Panthers, supra, at 44, quoting Batterton v. Francis, 432 U.S. 416, 426 (1977). Because Congress has entrusted the primary responsibility of interpreting a statutory term to the Secretary rather than to the courts, his definition is entitled to " `legislative effect.' " Schweiker v. Gray Panthers, supra, at 44; Batterton, v. Francis, supra, at 426. As in Gray Panthers and Batterton, our review is limited to determining whether the Secretary has exceeded his statutory authority and whether the regulation is arbitrary and capricious. Although Congress has approved of some deeming of income between Medicaid applicants and their spouses, Schweiker v. Gray Panthers, supra, at 48, we cannot agree with respondents that Congress intended the States to enforce their spousal responsibility policies wholly unimpeded by the Secretary's congressionally authorized power to give substance to the term "available." In placing time limitations upon the States' ability to consider the spouses income where the Medicaid applicant and his spouse no longer live together, the Secretary has done nothing more than define what income is "available." Although Congress intended that a spouses income could be part of the income which the Secretary may determine should be considered by the States as available to the Medicaid applicant, Schweiker v. Gray Panthers, supra, at 45, we see nothing in subsection (17)(D) that precludes the Secretary from imposing upon the States the time limits at issue in the instant case. We find nothing in subsection (17)(D) either that disables the Secretary from defining the term "available" in such circumstances, or that gives the States authority to "deem" income unimpeded by the Secretary's authority under subsection (17)(B).[13] Subsection (17)(D) cannot *276 be read to require the Secretary to permit the States to consider the income of a spouse no longer living with the applicant as available to the applicant for an unlimited duration. Although we do not agree with the contention of the United States, and apparently that of petitioners, that the time limitations in 42 CFR § 435.723 (1980) are compelled by the relationship between the Medicaid and SSI programs, we do agree that the Secretary may acknowledge this relationship in defining "availability" of income with regard to Medicaid applicants within the optional categories. As we have explained, the optional categorically needy consists in part of those individuals who are eligible for, but are not receiving, SSI benefits and those individuals who, but for their institutionalization, would be eligible for SSI benefits. Supra, at 269. Since these groups are defined in part with regard to SSI income limitations, it is reasonable that the Secretary should determine that States electing to provide medicaid assistance to the optional categorically needy should apply a similar method for calculating income as that employed in the SSI program. The 1-month and 6-month limitations in 42 CFR § 435.723 (1980) are virtually identical to the SSI requirements. See 42 U.S. C. §§ 1382(a)(1), 1382c(b), (f)(1). We cannot say that it is either arbitrary or capricious for the Secretary to conclude that SSI recipients and the optional categorically needy should be treated similarly with respect to the method used for calculating income in determining whether the State is entitled to receive federal financial assistance under the Medicaid program. In upholding the Secretary's limitation on deeming, we do not thereby render subsection (17)(D) meaningless. That provision, however, may not be read in isolation from the other provisions of the Social Security Act. We have no doubt that some tension exists between the Secretary's congressionally authorized power under subsection (17)(B) to determine what income is "available" to the applicant and Congress' intent in subsection (17)(D) to permit the States to *277 enforce their spousal responsibility policies.[14] Because Congress in subsection (17)(B) has delegated broad authority to the Secretary to set eligibility standards for the Medicaid program, however, we cannot say that the Secretary's regulations placing time limitations on the States' ability to deem income between spouses who do not share the same household are unreasonable or contrary to law. A reviewing court may not set aside the Secretary's regulations "simply because it would have interpreted the statute in a different manner." Batterton v. Francis, supra, at 425. A fortiori, Iowa may not ignore federal regulations simply because it interprets § 1902(a)(17) in a manner it considers preferable to the Secretary's interpretation. This would be a different case, and respondents' arguments more compelling, if the Secretary had sought to use his authority under subsection (17)(B) to foreclose entirely the States' ability to consider the income of the institutionalized applicant's spouse. Such a reading of the statute could well render subsection (17)(D) superfluous. See Schweiker v. Gray Panthers, 453 U. S., at 45. The Secretary's regulations, however, impose no such across-the-board limitation on the States' ability to implement their spousal responsibility policies. The challenged regulation applies only to those SSI States that have decided to extend Medicaid benefits to the optional categorically needy, and it prohibits deeming only after the spouses have ceased to live together for prescribed periods of time. On the contrary, 42 CFR § 435.723 (1980) is simply an exception to the general rule that the spouses income may be considered available to the applicant. With regard to the optional categorically needy, SSI States are required to deem *278 the income and resources of spouses living in the same household. § 435.723(b). States exercising the § 209(b) option are required to deem income to the extent required in SSI States and may deem to the full extent they did before 1972. § 435.734. See Schweiker v. Gray Panthers, supra, at 40.[15] Finally, the SSI applicant is considered to a similar extent to have available to him his spouses income and financial resources. See n. 2, supra. We conclude that the Secretary need not interpret § 1902 (a)(17) to require an individualized factual determination in each instance as to the amount of income of an applicant's spouse that may reasonably be considered available to the applicant. With regard to SSI recipients in SSI States, such an interpretation would be contrary to § 1902(a)(10)(A), 42 U.S. C. § 1396a(a)(10)(A). With regard to the optional categorically needy, we find that the Secretary has not exceeded his authority in promulgating 42 CFR § 435.723 (1980), and that this regulation is neither arbitrary nor capricious. Accordingly, we reverse the judgment of the Court of Appeals for the Eight Circuit and remand for proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part. The Court speculates that subsection 17(D) might well be superfluous if subsection 17(B) were read to permit the Secretary to foreclose entirely the States' ability to consider the income of the spouse of an institutionalized applicant. Ante, *279 at 277. This speculation apparently is predicated on the belief that subsection 17(D) requires the States to deem certain income of an applicant's spouse to be available to the applicant.[1] The Court's observation is both unnecessary and misleading.[2] Subsection 17(D), like subsection 17(B), places a limit on the extent to which an applicant's income may be deemed to include contributions from other sources. Nothing in the language of either subsection requires that any spousal income be deemed to be available to an applicant. Apart from the Court's speculation concerning a regulation that does not exist, I join its opinion.

Last Term in we upheld the validity of federal Medicaid regulations that permit "deeming" of income between spouses in those States that have exercised the so-called 09(b) option" provided for in the Social Security Act, as amended, 4 U.S. C. 1396 et seq. (1976 ed. and Supp. III). "Deeming," in the parlance of the Social Security laws and regulations, means that a State determines eligibility by assuming that a portion of the spouse's income is "available" to the applicant. Because an individual's eligibility for Medicaid benefits depends in part on the financial resources that are "available" to him, "[d]eeming has the effect of reducing both the number of eligible individuals and the amount of assistance paid to those who qualify." We rejected contentions that these regulations were arbitrary or capricious and that the regulations were inconsistent with 190(a)(17) of the Social Security Act, 4 U.S. C. 1396a(a)(17).[1] In *68 the present case, we are called upon to decide to what extent the State of Iowa, an "SSI State," may consider the income of the institutionalized Medicaid applicant's noninstitutionalized spouse in determining eligibility for Medicaid. As we explained in greater detail in Gray Medicaid as originally enacted "required participating States to provide medical assistance to `categorically needy' individuals who received cash payments under one of four welfare programs established elsewhere in the [Social Security] Act." This program was restructured in 197 by Congress, when it replaced three of the four categorical programs with Supplemental Security Income for the Aged, Blind, and Disabled (SSI), 4 U.S. C. 1381 et seq. (1976 ed. and Supp. III). Fearing that some States might withdraw from the Medicaid program rather than bear the increased costs imposed by the restructuring, Congress offered the States the 09(b) option." 4 U.S. C. 1396a(f). Under the 09(b) option, the States may elect to provide Medicaid assistance only to those individuals who would have been eligible under the State's Medicaid plan in effect on January 1, 197. In other words, the 09(b) option allows the States to avoid the effect of the link between the SSI and Medicaid programs: States may become either 09(b) States" or "SSI States." If a State participates in the Medicaid program without exercising the 09(b) option, the State is required to make Medicaid assistance available to all recipients of SSI benefits. 4 U.S. C. 1396a(a)(10)(A); 4 CFR 435.10[] SSI States, however, are not limited to providing Medicaid benefits to SSI recipients. The Medicaid program offers participating States the option of providing Medicaid assistance *69 to certain other groups of individuals, see 4 U.S. C. 1396(a)(10)(C), one of which is the "optional categorically needy." See 4 CFR 435.00-435.31[3] Included among the "optional categorically needy," are (1) individuals who would be eligible for, but for some reason are not receiving, SSI benefits and () individuals who would be eligible for SSI benefits but for their institutionalized status. 4 CFR 435.10-435.11 With regard to the "optional categorically needy," the Secretary's regulations require the States to "deem" the income and resources of spouses who share the same 4 CFR 435.73(b) Where both spouses are eligible for Medicaid, the States must "deem" income for the first six months after the spouses cease to live together. After this 6-month period, the States may consider only the income and resources actually contributed by one spouse to the other. 435.73(c). If only one spouse is eligible for Medicaid, a similar rule applies but the time period is one month instead of six. 435.73(d).[4] In effect, 435.73 places time limitations *70 on the States' ability to consider the spouse's income as "available" to the applicant after the spouses cease to live together. The question addressed by the lower courts, and now presented for our decision, is whether this regulation is a permissible exercise of the Secretary's authority under the Act to define what income is "available." I Petitioner Elvina Herweg has been in a comatose state since August 1976 as a result of two cerebral hemorrhages. When she was placed in a long-term care facility, her husband, petitioner Darrell Herweg, applied for Medicaid assistance on Elvina's behalf. Elvina does not receive SSI benefits, although the parties and the United States as amicus curiae agree that she is eligible to receive such benefits.[5] Iowa applied its own formula to determine Elvina's eligibility for Medicaid and to ascertain the amount Darrell would be required to contribute toward his wife's care. This formula was based on the income Darrell earned as a butcher and on standard living allowances allowed Darrell and his three children living at home. In other words, Iowa was "deeming," or attributing, income earned by one spouse to the other. Iowa, however, was deeming in a manner inconsistent with the Secretary's regulations, which place time limitations upon the States' ability to consider as available to the applicant his spouse's income where the spouses do not share the same and this page, and n. 4. Because Elvina was institutionalized and because Darrell is not *71 eligible for Medicaid, the Secretary's regulations prohibit Iowa from considering Darrell's income after one month from the time the couple ceased to live together. See 4 CFR 435.73(d) Petitioners filed the instant suit in the United States District Court for the Southern District of Iowa challenging Iowa's "deeming" of the income of a Medicaid applicant's spouse.[6] After certifying a class of plaintiffs,[7] the District Court held that 190(a)(17) of the Social Security Act, 4 U.S. C. 1396a(a)(17), required Iowa's procedures to "provide for a factual determination in each instance of the amount of the spouses income which is in fact reasonably available for the support of the institutionalized spouse. Such determination must give due consideration to the individual obligations and the particular needs of each spouse and family." In interpreting 190(a)(17), the District Court concluded that " `deeming' is contrary to congressional intent whether income of the noninstitutionalized spouse is deemed available or unavailable." The District Court noted that the predecessor to 4 CFR 435.73 [8] was inconsistent with its interpretation of 190(a)(17). In the District Court's view, therefore, the Secretary's regulation was inconsistent with *7 190(a)(17) because the regulation disabled the States in certain instances from considering the spouses income as available to the applicant. In response to this order, Iowa adopted a procedure for making individualized factual determinations of the amount of income available to an institutionalized spouse. The District Court approved this plan and petitioners appealed. The Court of Appeals for the Eighth Circuit affirmed by an equally divided Court. We reverse. II Although Elvina Herweg does not receive SSI benefits, the class certified without objection by the District Court includes SSI recipients. We therefore construe the order entered by the District Court, and the plan adopted by Iowa in response, as applying both to SSI recipients and to the optional categorically needy. A With regard to recipients of SSI benefits, the District Court's order clearly conflicts with 190(a)(10)(A) of the Social Security Act, 4 U.S. C. 1396a(a)(10)(A), which requires States not having exercised the 09(b) option to provide Medicaid assistance to all SSI recipients.[9] 4 CFR 435.10 See The SSI program, contained in Title XVI of the Social Security Act, 4 U.S. C. 138 et seq. (1976 ed. and Supp. III), contains its own eligibility provisions. See, e. g., 4 U.S. C. 138(a)(1), 138c(b), (f)(1). Pursuant to the District Court's order, however, Iowa is permitted to deny *73 Medicaid benefits to institutionalized SSI recipients if, after making an individualized factual determination, Iowa concludes that the income of the SSI recipient's spouse should be considered available even though it was not actually contributed. Because Congress has clearly spoken in this regard, to the extent it permits Iowa to deny Medicaid assistance to SSI recipients, the District Court's order cannot stand.[10] In requiring individualized determinations of income available to the Medicaid applicant, the District Court held that the Secretary has exceeded his authority in permitting any "deeming" whatsoever. In however, we held that Congress intended to permit a state Medicaid plan to deem the income from the applicant's spouse as part of the available income which the state plan may consider in determining eligibility. Thus, to the extent that the District Court's order forbids deeming under any circumstances, the order conflicts with our decision in Gray B The issue that remains, therefore, is whether 190(a)(17) precludes the Secretary from promulgating regulations that impose time limitations upon the States' ability to consider the income of the institutionalized applicant's spouse. *74 Relying on 190(a)(17)(D),[11] respondents argue that the Secretary has exceeded his authority in placing time limitations upon the States' authority to consider the financial responsibility of spouses. Subsection (17)(D), respondents argue, evidences Congress' intent to permit the States to consider the financial responsibility of spouses and parents. Nothing in the statute or the legislative history,[1] respondents contend, suggests that Congress intended to prevent the States from enforcing their financial responsibility policies simply because the Medicaid applicant is institutionalized. We think, however, that respondents overemphasize the effect of subsection (17)(D). That provision may not be read independently of subsection (17)(B). Subsection (17)(B) provides that participating States must grant benefits to eligible individuals "taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant." 4 U.S. C. 1396a(a)(17)(B) (emphasis added). In Gray we recognized that subsection (17)(B) delegates to the Secretary broad authority to prescribe standards setting eligibility requirements for state Medicaid plans. In view of Congress' explicit delegation of authority to give substance to the meaning of "available," the Secretary's definition of the term is " `entitled to more than mere deference or weight.' " *75 quoting Because Congress has entrusted the primary responsibility of interpreting a statutory term to the Secretary rather than to the courts, his definition is entitled to " `legislative effect.' " ; Batterton, v. at As in Gray and Batterton, our review is limited to determining whether the Secretary has exceeded his statutory authority and whether the regulation is arbitrary and capricious. Although Congress has approved of some deeming of income between Medicaid applicants and their spouses, we cannot agree with respondents that Congress intended the States to enforce their spousal responsibility policies wholly unimpeded by the Secretary's congressionally authorized power to give substance to the term "available." In placing time limitations upon the States' ability to consider the spouses income where the Medicaid applicant and his spouse no longer live together, the Secretary has done nothing more than define what income is "available." Although Congress intended that a spouses income could be part of the income which the Secretary may determine should be considered by the States as available to the Medicaid applicant, we see nothing in subsection (17)(D) that precludes the Secretary from imposing upon the States the time limits at issue in the instant case. We find nothing in subsection (17)(D) either that disables the Secretary from defining the term "available" in such circumstances, or that gives the States authority to "deem" income unimpeded by the Secretary's authority under subsection (17)(B).[13] Subsection (17)(D) cannot *76 be read to require the Secretary to permit the States to consider the income of a spouse no longer living with the applicant as available to the applicant for an unlimited duration. Although we do not agree with the contention of the United States, and apparently that of petitioners, that the time limitations in 4 CFR 435.73 are compelled by the relationship between the Medicaid and SSI programs, we do agree that the Secretary may acknowledge this relationship in defining "availability" of income with regard to Medicaid applicants within the optional categories. As we have explained, the optional categorically needy consists in part of those individuals who are eligible for, but are not receiving, SSI benefits and those individuals who, but for their institutionalization, would be eligible for SSI benefits. Since these groups are defined in part with regard to SSI income limitations, it is reasonable that the Secretary should determine that States electing to provide medicaid assistance to the optional categorically needy should apply a similar method for calculating income as that employed in the SSI program. The 1-month and 6-month limitations in 4 CFR 435.73 are virtually identical to the SSI requirements. See 4 U.S. C. 138(a)(1), 138c(b), (f)(1). We cannot say that it is either arbitrary or capricious for the Secretary to conclude that SSI recipients and the optional categorically needy should be treated similarly with respect to the method used for calculating income in determining whether the State is entitled to receive federal financial assistance under the Medicaid program. In upholding the Secretary's limitation on deeming, we do not thereby render subsection (17)(D) meaningless. That provision, however, may not be read in isolation from the other provisions of the Social Security Act. We have no doubt that some tension exists between the Secretary's congressionally authorized power under subsection (17)(B) to determine what income is "available" to the applicant and Congress' intent in subsection (17)(D) to permit the States to *77 enforce their spousal responsibility policies.[14] Because Congress in subsection (17)(B) has delegated broad authority to the Secretary to set eligibility standards for the Medicaid program, however, we cannot say that the Secretary's regulations placing time limitations on the States' ability to deem income between spouses who do not share the same household are unreasonable or contrary to law. A reviewing court may not set aside the Secretary's regulations "simply because it would have interpreted the statute in a different manner." A fortiori, Iowa may not ignore federal regulations simply because it interprets 190(a)(17) in a manner it considers preferable to the Secretary's interpretation. This would be a different case, and respondents' arguments more compelling, if the Secretary had sought to use his authority under subsection (17)(B) to foreclose entirely the States' ability to consider the income of the institutionalized applicant's spouse. Such a reading of the statute could well render subsection (17)(D) superfluous. See The Secretary's regulations, however, impose no such across-the-board limitation on the States' ability to implement their spousal responsibility policies. The challenged regulation applies only to those SSI States that have decided to extend Medicaid benefits to the optional categorically needy, and it prohibits deeming only after the spouses have ceased to live together for prescribed periods of time. On the contrary, 4 CFR 435.73 is simply an exception to the general rule that the spouses income may be considered available to the applicant. With regard to the optional categorically needy, SSI States are required to deem *78 the income and resources of spouses living in the same 435.73(b). States exercising the 09(b) option are required to deem income to the extent required in SSI States and may deem to the full extent they did before 197. 435.734. See[15] Finally, the SSI applicant is considered to a similar extent to have available to him his spouses income and financial resources. See n. We conclude that the Secretary need not interpret 190 (a)(17) to require an individualized factual determination in each instance as to the amount of income of an applicant's spouse that may reasonably be considered available to the applicant. With regard to SSI recipients in SSI States, such an interpretation would be contrary to 190(a)(10)(A), 4 U.S. C. 1396a(a)(10)(A). With regard to the optional categorically needy, we find that the Secretary has not exceeded his authority in promulgating 4 CFR 435.73 and that this regulation is neither arbitrary nor capricious. Accordingly, we reverse the judgment of the Court of Appeals for the Eight Circuit and remand for proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part. The Court speculates that subsection 17(D) might well be superfluous if subsection 17(B) were read to permit the Secretary to foreclose entirely the States' ability to consider the income of the spouse of an institutionalized applicant. Ante, *79 at 77. This speculation apparently is predicated on the belief that subsection 17(D) requires the States to deem certain income of an applicant's spouse to be available to the applicant.[1] The Court's observation is both unnecessary and misleading.[] Subsection 17(D), like subsection 17(B), places a limit on the extent to which an applicant's income may be deemed to include contributions from other sources. Nothing in the language of either subsection requires that any spousal income be deemed to be available to an applicant. Apart from the Court's speculation concerning a regulation that does not exist, I join its opinion.

Justice Ginsburg

concurring

Reno v. American-Arab Anti-Discrimination Comm.

https://www.courtlistener.com/opinion/118264/reno-v-american-arab-anti-discrimination-comm/

https://www.courtlistener.com/api/rest/v3/clusters/118264/

1998-024

I agree with Justice Scalia that 8 U.S. C. § 1252(g) (1994 ed., Supp. III) applies to this case and deprives the federal courts of jurisdiction over respondents' pre-final-order suit. Under § 1252, respondents may obtain circuit court review of final orders of removal pursuant to the Hobbs Act, 28 U.S. C. § 2341 et seq. (1994 ed. and Supp. II). See 8 U.S. C. § 1252(a)(1) (1994 ed., Supp. III). I would not prejudge the question whether respondents may assert a selective enforcement objection when and if they pursue such review. It suffices to inquire whether the First Amendment necessitates immediate judicial consideration of their selective enforcement plea. I conclude that it does not. I Respondents argue that they are suffering irreparable injury to their First Amendment rights and therefore require instant review of their selective enforcement claims. We have not previously determined the circumstances under which the Constitution requires immediate judicial intervention in federal administrative proceedings of this order. Respondents point to our cases addressing federal injunctions *493 that stop state proceedings, in order to secure constitutional rights. They feature in this regard Dombrowski v. Pfister, 380 U.S. 479 (1965), as interpreted in Younger v. Harris, 401 U.S. 37, 47-53 (1971). Respondents also refer to Oestereich v. Selective Serv. System Local Bd. No. 11, 393 U.S. 233 (1968). Those cases provide a helpful framework. In Younger, this Court declared that federal restraint of state prosecutions is permissible only if the state defendant establishes "great and immediate" irreparable injury, beyond "that incidental to every criminal proceeding brought lawfully and in good faith." 401 U. S., at 46, 47 (internal quotation marks omitted). A chilling effect, the Court cautioned, does not "by itself justify federal intervention." Id., at 50. Younger recognized, however, the prospect of extraordinary circumstances in which immediate federal injunctive relief might be obtained. The Court referred, initially, to bad faith, harassing police and prosecutorial actions pursued without "any expectation of securing valid convictions." Id., at 48 (internal quotation marks omitted).[1] Further, the Court observed that there may be other "extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment," for example, where a statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Id., at 53-54 (internal quotation marks omitted). *494 In Oestereich, the Selective Service Board had withdrawn a ministry student's statutory exemption from the draft after he engaged in an act of protest. See 393 U.S., at 234. The student brought suit to restrain his induction, and this Court allowed the suit to go forward, notwithstanding a statutory bar of preinduction judicial review. Finding the Board's action "blatantly lawless," the Court concluded that to require the student to raise his claim through habeas corpus or as a defense to a criminal prosecution would be "to construe the Act with unnecessary harshness." Id., at 238. The precedent in point suggests that interlocutory intervention in Immigration and Naturalization Service (INS) proceedings would be in order, notwithstanding a statutory bar, if the INS acts in bad faith, lawlessly, or in patent violation of constitutional rights. Resembling, but more stringent than, the evaluation made when a preliminary injunction is sought, see, e. g., Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) ("The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits."), this test would demand, as an essential element, demonstration of a strong likelihood of success on the merits. The merits of respondents' objection are too uncertain to establish that likelihood. The Attorney General argued in the court below and in the petition for certiorari that the INS may select for deportation aliens who it has reason to believe have carried out fundraising for a foreign terrorist organization. See App. to Pet. for Cert. 20a; Pet. for Cert. 21-25. Whether the INS may do so presents a complex question in an uncharted area of the law, which we should not rush to resolve here. Relying on Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423 (1982), respondents argue that their inability to raise their selective enforcement claims *495 during the administrative proceedings, see ante, at 476, makes immediate judicial intervention necessary. As we explained in Middlesex County, Younger abstention is appropriate only when there is "an adequate opportunity in the state proceedings to raise constitutional challenges." 457 U.S., at 432; see Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629 (1986) (even if complainants could not raise their First Amendment objections in the administrative hearing, it sufficed that objections could be aired in state-court judicial review of any administrative decision). Here, Congress has established an integrated scheme for deportation proceedings, channeling judicial review to the final order, and deferring issues outside the agency's authority until that point. Given Congress' strong interest in avoiding delay of deportation proceedings, see ante, at 490, I find the opportunity to raise a claim during the judicial review phase sufficient. If a court of appeals reviewing final orders of removal against respondents could not consider their selective enforcement claims, the equation would be different. See Webster v. Doe, 486 U.S. 592, 603 (1988) (a "serious constitutional question . . . would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim" (internal quotation marks omitted)). Respondents argue that that is the case, because their claims require factfinding beyond the administrative record. Section 1252(a)(1) authorizes judicial review of "final order[s] of removal." We have previously construed such "final order" language to authorize judicial review of "all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." INS v. Chadha, 462 U.S. 919, 938 (1983) (internal quotation marks omitted). Whether there is here a need for factfinding beyond the administrative record is a matter properly postponed. I note, however, the Attorney General's *496 position that the reviewing court of appeals may transfer a case to a district court for resolution of pertinent issues of material fact, see Brief for Petitioners 44, 48-49, and n. 23,[2] and counsel's assurance at oral argument that petitioners will adhere to that position, see Tr. of Oral Arg. 5-6.[3] *497 II The petition for certiorari asked this Court to review the merits of respondents' selective enforcement objection, but we declined to do so, granting certiorari on the jurisdictional question only. See Pet. for Cert. I, 20-30; 524 U.S. 903 (1998). We thus lack full briefing on respondents' selective enforcement plea and on the viability of such objections generally. I would therefore leave the question an open one. I note, however, that there is more to "the other side of the ledger," ante, at 491, than the Court allows. It is well settled that "[f]reedom of speech and of press is accorded aliens residing in this country." Bridges v. Wixon, 326 U.S. 135, 148 (1945). Under our selective prosecution doctrine, "the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." Wayte v. United States, 470 U.S. 598, 608 (1985) (internal citations and quotation marks omitted). I am not persuaded that selective enforcement of deportation laws should be exempt from that prescription. If the Government decides to deport an alien "for reasons forbidden by the Constitution," United States v. Armstrong, 517 U.S. 456, 463 (1996), it does not seem to me that redress for the constitutional violation should turn on the gravity of the governmental sanction. Deportation, in any event, is a grave sanction. As this Court has long recognized, "[t]hat deportation is a penalty— at times a most serious one—cannot be doubted." Bridges, 326 U. S., at 154; see also ibid. (Deportation places "the liberty *498 of an individual . . . at stake. . . . Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom."); G. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 162 (1996) ("Deportation has a far harsher impact on most resident aliens than many conceded `punishment[s]' . . . . Uprooting the alien from home, friends, family, and work would be severe regardless of the country to which the alien was being returned; breaking these attachments inflicts more pain than preventing them from being made."). * * * In sum, were respondents to demonstrate strong likelihood of ultimate success on the merits and a chilling effect on current speech, and were we to find the agency's action flagrantly improper, precedent and sense would counsel immediate judicial intervention. But respondents have made no such demonstration. Further, were respondents to assert a colorable First Amendment claim as a now or never matter— were that claim not cognizable upon judicial review of a final order—again precedent and sense would counsel immediate resort to a judicial forum. In common with the Attorney General, however, I conclude that in the final judicial episode, factfinding, to the extent necessary to fairly address respondents' claims, is not beyond the federal judiciary's ken. For the reasons stated, I join in Parts I and II of the Court's opinion and concur in the judgment. Justice Stevens, concurring in the judgment. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or Act) is a part of an omnibus enactment that occupies 750 pages in the Statutes at Large. Pub. L. 104-208, 110 Stat. 3009-546. It is not surprising that it contains a scrivener's error. See Green v. Bock *499 Laundry Machine Co., 490 U.S. 504, 511 (1989). Despite that error, Congress' intended disposition of cases like this is plain. It must be dismissed. The textual difficulty that is debated by my colleagues concerns the impact of IIRIRA on proceedings that were pending on the effective date of the Act. Putting those cases to one side for the moment, the meaning of 8 U.S. C. §§ 1252(b)(9) and (g) (1994 ed., Supp. III) is perfectly clear. The former postpones judicial review of removal proceedings until the entry of a final order[1] and the latter deprives federal courts of jurisdiction over collateral challenges to ongoing administrative proceedings.[2] Thus, if § 1252 applies to these respondents, the deportation proceedings pending before the Immigration and Naturalization Service (INS) are not yet ripe for review, and this collateral attack on those proceedings must be dismissed. If we substitute the word "Act" for the word "section" in the introductory clause of § 1252(g), the impact of this provision on pending proceedings is equally clear. That substitution would remove any obstacle to giving effect to the plain meaning of IIRIRA §§ 306(c)(1) and 309(c)(1). The former defines the effective date of the Act and makes § 1252(g)'s *500 prohibition against collateral attacks effective immediately;[3] the latter makes the new rules inapplicable to aliens in exclusion or deportation proceedings pending before the INS on the effective date of the Act.[4] Judicial review of those administrative proceedings remains available in the courts of appeal under the old statutory regime. See 8 U.S. C. § 1105a. Admittedly, there is a slight ambiguity in the text of § 309 because it refers to the "case of an alien who is in exclusion or deportation proceedings" before the effective date of the new Act. Respondents are such aliens, and therefore the word "case" arguably could be read to include their present collateral attack on the INS proceedings as well as to an eventual challenge to the final order of deportation. Because that reading would be inconsistent with § 306, however, it is clear that Congress intended § 309 to apply only to the INS "exclusion or deportation" proceedings that it expressly mentions. To summarize, I think a fair reading of all relevant provisions in the statute makes it clear that Congress intended its prohibition of collateral attacks on ongoing INS proceedings *501 to become effective immediately while providing that pending administrative proceedings should be completed under the scheme of judicial review in effect when they were commenced. I should add that I agree with Justice Souter 2122s explanation of why § 1252(g) applies broadly to removal proceedings rather than to only three discrete parts of such proceedings. See post, at 505-507 (dissenting opinion). I do not, however, share his constitutional doubt concerning the prohibition of collateral proceedings such as this one. Of course, Congress could not authorize punishment of innocent persons because they happen to be members of an organization that engaged in terrorism. For the reasons stated in Part III of the Court's opinion, however, I have no doubt that the Attorney General may give priority to the removal of deportable aliens who are members of such an organization. See ante, at 487-492. Accordingly, I agree that the judgment of the District Court must be vacated.

I agree with Justice Scalia that 8 U.S. C. 1252(g) (1994 ed., Supp. III) applies to this case and deprives the federal courts of jurisdiction over respondents' pre-final-order suit. Under 1252, respondents may obtain circuit court review of final orders of removal pursuant to the Hobbs Act, 28 U.S. C. 2341 et seq. (1994 ed. and Supp. II). See 8 U.S. C. 1252(a)(1) (1994 ed., Supp. III). I would not prejudge the question whether respondents may assert a selective enforcement objection when and if they pursue such review. It suffices to inquire whether the First Amendment necessitates immediate judicial consideration of their selective enforcement plea. I conclude that it does not. I Respondents argue that they are suffering irreparable injury to their First Amendment rights and therefore require instant review of their selective enforcement claims. We have not previously determined the circumstances under which the Constitution requires immediate judicial intervention in federal administrative proceedings of this order. Respondents point to our cases addressing federal injunctions *493 that stop state proceedings, in order to secure constitutional rights. They feature in this regard as interpreted in Respondents also refer to Those cases provide a helpful framework. In Younger, this Court declared that federal restraint of state prosecutions is permissible only if the state defendant establishes "great and immediate" irreparable injury, beyond "that incidental to every criminal proceeding brought lawfully and in good faith." 47 A chilling effect, the Court cautioned, does not "by itself justify federal intervention." Younger recognized, however, the prospect of extraordinary circumstances in which immediate federal injunctive relief might be obtained. The Court referred, initially, to bad faith, harassing police and prosecutorial actions pursued without "any expectation of securing valid convictions."[1] Further, the Court observed that there may be other "extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment," for example, where a statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." *494 In Oestereich, the Selective Service Board had withdrawn a ministry student's statutory exemption from the draft after he engaged in an act of protest. See The student brought suit to restrain his induction, and this Court allowed the suit to go forward, notwithstanding a statutory bar of preinduction judicial review. Finding the Board's action "blatantly lawless," the Court concluded that to require the student to raise his claim through habeas corpus or as a defense to a criminal prosecution would be "to construe the Act with unnecessary harshness." The precedent in point suggests that interlocutory intervention in Immigration and Naturalization Service (INS) proceedings would be in order, notwithstanding a statutory bar, if the INS acts in bad faith, lawlessly, or in patent violation of constitutional rights. Resembling, but more stringent than, the evaluation made when a preliminary injunction is sought, see, e. g., this test would demand, as an essential element, demonstration of a strong likelihood of success on the merits. The merits of respondents' objection are too uncertain to establish that likelihood. The Attorney General argued in the court below and in the petition for certiorari that the INS may select for deportation aliens who it has reason to believe have carried out fundraising for a foreign terrorist organization. See App. to Pet. for Cert. 20a; Pet. for Cert. 21-25. Whether the INS may do so presents a complex question in an uncharted area of the law, which we should not rush to resolve here. Relying on Middlesex County Ethics respondents argue that their inability to raise their selective enforcement claims *495 during the administrative proceedings, see ante, at 476, makes immediate judicial intervention necessary. As we explained in Middlesex County, Younger abstention is appropriate only when there is "an adequate opportunity in the state proceedings to raise constitutional challenges." ; see Ohio Civil Rights Here, Congress has established an integrated scheme for deportation proceedings, channeling judicial review to the final order, and deferring issues outside the agency's authority until that point. Given Congress' strong interest in avoiding delay of deportation proceedings, see ante, at 490, I find the opportunity to raise a claim during the judicial review phase sufficient. If a court of appeals reviewing final orders of removal against respondents could not consider their selective enforcement claims, the equation would be different. See (a "serious constitutional question would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim" ). Respondents argue that that is the case, because their claims require factfinding beyond the administrative record. Section 1252(a)(1) authorizes judicial review of "final order[s] of removal." We have previously construed such "final order" language to authorize judicial review of "all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." Whether there is here a need for factfinding beyond the administrative record is a matter properly postponed. I note, however, the Attorney General's *496 position that the reviewing court of appeals may transfer a case to a district court for resolution of pertinent issues of material fact, see Brief for Petitioners 44, 48-49, and n. 23,[2] and counsel's assurance at oral argument that petitioners will adhere to that position, see Tr. of Oral Arg. 5-6.[3] *497 II The petition for certiorari asked this Court to review the merits of respondents' selective enforcement objection, but we declined to do so, granting certiorari on the jurisdictional question only. See Pet. for Cert. I, 20-30; We thus lack full briefing on respondents' selective enforcement plea and on the viability of such objections generally. I would therefore leave the question an open one. I note, however, that there is more to "the other side of the ledger," ante, at 491, than the Court allows. It is well settled that "[f]reedom of speech and of press is accorded aliens residing in this country." Under our selective prosecution doctrine, "the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." I am not persuaded that selective enforcement of deportation laws should be exempt from that prescription. If the Government decides to deport an alien "for reasons forbidden by the Constitution," United it does not seem to me that redress for the constitutional violation should turn on the gravity of the governmental sanction. Deportation, in any event, is a grave sanction. As this Court has long recognized, "[t]hat deportation is a penalty— at times a most serious one—cannot be doubted." ; see also ; G. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 162 ("Deportation has a far harsher impact on most resident aliens than many conceded `punishment[s]' Uprooting the alien from home, friends, family, and work would be severe regardless of the country to which the alien was being returned; breaking these attachments inflicts more pain than preventing them from being made."). * * * In sum, were respondents to demonstrate strong likelihood of ultimate success on the merits and a chilling effect on current speech, and were we to find the agency's action flagrantly improper, precedent and sense would counsel immediate judicial intervention. But respondents have made no such demonstration. Further, were respondents to assert a colorable First Amendment claim as a now or never matter— were that claim not cognizable upon judicial review of a final order—again precedent and sense would counsel immediate resort to a judicial forum. In common with the Attorney General, however, I conclude that in the final judicial episode, factfinding, to the extent necessary to fairly address respondents' claims, is not beyond the federal judiciary's ken. For the reasons stated, I join in Parts I and II of the Court's opinion and concur in the judgment. Justice Stevens, concurring in the judgment. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or Act) is a part of an omnibus enactment that occupies 750 pages in the Statutes at Large. Stat. 3009-546. It is not surprising that it contains a scrivener's error. See Despite that error, Congress' intended disposition of cases like this is plain. It must be dismissed. The textual difficulty that is debated by my colleagues concerns the impact of IIRIRA on proceedings that were pending on the effective date of the Act. Putting those cases to one side for the moment, the meaning of 8 U.S. C. 1252(b)(9) and (g) (1994 ed., Supp. III) is perfectly clear. The former postpones judicial review of removal proceedings until the entry of a final order[1] and the latter deprives federal courts of jurisdiction over collateral challenges to ongoing administrative proceedings.[2] Thus, if 1252 applies to these respondents, the deportation proceedings pending before the Immigration and Naturalization Service (INS) are not yet ripe for review, and this collateral attack on those proceedings must be dismissed. If we substitute the word "Act" for the word "section" in the introductory clause of 1252(g), the impact of this provision on pending proceedings is equally clear. That substitution would remove any obstacle to giving effect to the plain meaning of IIRIRA 306(c)(1) and 309(c)(1). The former defines the effective date of the Act and makes 1252(g)'s *500 prohibition against collateral attacks effective immediately;[3] the latter makes the new rules inapplicable to aliens in exclusion or deportation proceedings pending before the INS on the effective date of the Act.[4] Judicial review of those administrative proceedings remains available in the courts of appeal under the old statutory regime. See 8 U.S. C. 1105a. Admittedly, there is a slight ambiguity in the text of 309 because it refers to the "case of an alien who is in exclusion or deportation proceedings" before the effective date of the new Act. Respondents are such aliens, and therefore the word "case" arguably could be read to include their present collateral attack on the INS proceedings as well as to an eventual challenge to the final order of deportation. Because that reading would be inconsistent with 306, however, it is clear that Congress intended 309 to apply only to the INS "exclusion or deportation" proceedings that it expressly mentions. To summarize, I think a fair reading of all relevant provisions in the statute makes it clear that Congress intended its prohibition of collateral attacks on ongoing INS proceedings *501 to become effective immediately while providing that pending administrative proceedings should be completed under the scheme of judicial review in effect when they were commenced. I should add that I agree with Justice Souter 2122s explanation of why 1252(g) applies broadly to removal proceedings rather than to only three discrete parts of such proceedings. See post, 5-507 (dissenting opinion). I do not, however, share his constitutional doubt concerning the prohibition of collateral proceedings such as this one. Of course, Congress could not authorize punishment of innocent persons because they happen to be members of an organization that engaged in terrorism. For the reasons stated in Part III of the Court's opinion, however, I have no doubt that the Attorney General may give priority to the removal of deportable aliens who are members of such an organization. See ante, 7-492. Accordingly, I agree that the judgment of the District Court must be vacated.

Justice Powell

dissenting

Pennsylvania v. New York

https://www.courtlistener.com/opinion/108576/pennsylvania-v-new-york/

https://www.courtlistener.com/api/rest/v3/clusters/108576/

1971-143

The majority opinion today purports to apply the rule laid down in Texas v. New Jersey, 379 U.S. 674 (1965), to a fact situation not contemplated when that case was decided. In applying that rule to these new facts, it seems to me that the Court exalts the rule but derogates the reasons supporting it. I Texas v. New Jersey, a case decided within the Court's original jurisdiction, is a unique precedent. Disposition of that case necessarily required a departure from the Court's usual mode of decisionmaking. Our role in this country's scheme of government is ordinarily a restricted one, limited in large measure to the resolution of conflicts calling for the interpretation and application either of statutory acts or of provisions of the Federal Constitution. In the performance of this function, an individual Justice's views as to what he might consider "fair" or "equitable" or "expeditious" are largely immaterial. Infrequently, however, we are called on to resolve disputes arising under the original jurisdiction of the Court (Art. III, § 2) in which our judgment is unaided by statutory or constitutional directives. In approaching such cases, we may find, as did the *217 Court in Texas v. New Jersey, that fairness and expeditiousness provide the guideposts for our decision: "[T]he issue here is not controlled by statutory or constitutional provisions or by past decisions, nor is it entirely one of logic. It is fundamentally a question of ease of administration and of equity." Id., at 683. The case before us today requires the application of similar principles, and I agree that Mr. Justice Black's opinion in Texas v. New Jersey points the way to the most desirable result. In my view, however, the majority's application of that precedent to the facts of this case offends both the "fairness" and "ease of administration" bases of that opinion. The Court in Texas v. New Jersey was asked to decide which States could take title to escheatable intangible personal property in the form of debts owed by Sun Oil Co. to a large number of individual creditors. After rejecting several alternatives offered by the parties, the Court adopted the rule proposed by the State of Florida and approved by the Special Master. Under that rule the power to escheat the debts in question, in the first instance, was to be accorded "to the State of the creditor's last known address as shown by the debtor's books and records." Id., at 680-681. In the "infrequent" case in which no record of last address was available or in which the appropriate State's laws did not provide for the escheat of abandoned intangibles, the property was to go to the State of the debtor's corporate domicile. Id., at 682. This disposition recommended itself to the Court for several reasons. The rule was generally consistent with the common-law maxim "mobilia sequuntur personam"[*]*218 under which intangible personal property may be found to follow the domicile of its owner—here the creditor. Id., at 680 n. 10. In looking to the residence of the creditor, the rule adopted by the Court recognized that the Company's unclaimed debts were assets of the individual creditors rather than assets of the debtor. Id., at 681. Also, in distributing the property among the creditors' States, the rule had the advantage of dividing the property in a manner roughly proportionate to the commercial activities of each State's residents. In using the last-known address as the sole indicator of domicile, the rule would be easy to administer and apply. The Court recognized, of course, that this approach might lead to the escheat of property to a State from which the creditor had removed himself in the period since the debt arose. Yet it concluded that these instances would "tend to a large extent to cancel each other out," and would not disrupt the basic fairness and expeditiousness of the result. Id., at 681. Paradoxically, the mechanistic application of the Texas v. New Jersey rule to the present case leads ultimately to the defeat of each of the beneficial justifications for that rule. Unlike the records of the numerous debts owed by Sun Oil, Western Union's records may reflect the creditors' addresses for only a relatively small percentage of the transactions. As a consequence, the greater portion of the entire Western Union fund will go to the State of New York—the State of corporate domicile. Effectively then, the obligation of the debtor will be converted into an asset of the debtor's State of domicile to the exclusion of the creditors' States. The Court in Texas v. New Jersey specifically repudiated this result on the ground that it was inconsistent with "principles of fairness." Id., at 680. It would have "exalt[ed] a minor factor to permit escheat of obligations incurred all over the country by the State in which the debtor happened *219 to incorporate itself." Ibid. The fact that the Court was willing to permit this result in the few cases in which no record of address was available or in which no law of escheat governed, does not diminish the clear view of the Court that this result would be impermissible as a basis for disposing of more than a small minority of the debts. Yet the decision today ignores the Court's unwillingness to "exalt" the largely coincidental domicile of the corporate debtor. It also disregards the Court's clearly expressed intent that the escheatable property be distributed in proportions roughly comparable to the volume of transactions conducted in each State. Furthermore, the rule today is incompatible with the Court's view in Texas v. New Jersey that an easily and inexpensively discernible mode of allocation be utilized. The majority's rule will require the examination of every available money order application to determine whether the applicant filled out the address blank for his own address, or in the case of money order drafts received but not cashed, whether the holder's address had been preserved. Western Union estimated in the stipulated statement of facts that such an item-by-item examination could be undertaken at a cost of approximately $175,000. Report of the Special Master 16. In sum, the invocation of the Texas v. New Jersey rule in the manner contemplated by the majority will lead to a result that is neither expeditious nor equitable. II The reasons underlying Texas v. New Jersey could best be effectuated by a relatively minor but logical deviation in the manner in which that rule is implemented in this case. Rather than embarking upon a potentially fruitless search for the creditor's last-known address as a rough indicator of domicile, reliance should be placed upon the State where the debtor-creditor relationship was *220 established. In most cases that State is likely also to be the site of the creditor's domicile. In other words, in the case of money orders sent and then returned to the initiating Western Union office because the sendee failed to claim the money, the State in which the money order was purchased may be presumed to be the State of the purchaser-creditor's domicile. And, where the draft has been received by either the initiating party or by the recipient but not negotiated, the State in which the draft was issued may be assumed to be the State of that creditor's domicile. This modification is preferable, first, because it preserves the equitable foundation of the Texas v. New Jersey rule. The State of the corporate debtor's domicile is denied a "windfall"; the fund is divided in a proportion approximating the volume of transactions occurring in each State; and the integrity of the notion that these amounts represent assets of the individual purchasers or recipients of money orders is maintained. Secondly, the relevant information would be more easily obtainable. The place of purchase and the office of destination are reflected in Western Union's ledger books and it would, therefore, be unnecessary to examine the innumerable application forms themselves. Since the ledgers are more readily available, the allocation of the fund would be effected at less expense than would be required by the majority's resolution. Despite these advantages, the Special Master rejected this alternative. He reasoned that an undetermined number of these transactions must have taken place outside the creditors' State of domicile. Specifically, he cited the cases in which a New Jersey or Connecticut resident might purchase a money order in New York, or cases in which a resident of Virginia or Maryland might make his purchase in the District of Columbia. Report of the Special Master 18. While such cases *221 certainly exist, they are merely exceptions to a generally reliable rule that money order purchases are likely to have occurred within the State of the purchaser's domicile. That perfection is not achieved is no reason to reject this alternative. The Texas v. New Jersey Court recognized that absolute fairness was not obtainable and that the most that could be expected was a rule providing a reasonable approximation. Id., at 681 n. 11. Certainly this objection should not be allowed to frustrate the better alternative in favor of one that is less fair and more difficult to administer. III The majority opinion intimates, as I think it must, that the ultimate consequence of its decision today is inconsistent (ante, at 214) with the result in Texas v. New Jersey. While the opinion appears to recognize that New York will reap the very "windfall" that Texas v. New Jersey sought to avoid, its refusal to bend in the face of this consequence goes largely unexplained. Apparently, the basis for its decision is the conviction that the Court's prior precedent was designed to settle the question of escheat of intangible personal property "once and for all." Id., at 678. The majority adheres to the existing rule because of some apprehension that flexibility in this case will deprive the Court of a satisfactory test for the resolution of future cases. The opinion anticipates that departure from Texas v. New Jersey will leave other cases to be decided on an ad hoc basis, depending in each case on the "adequacy of the debtor's records." Ante, at 215. Although the factual circumstances of future cases cannot be predicted, it is likely that most of such cases can be resolved within the principles of Texas v. New Jersey. The factual range is limited. The debtor either will or will not maintain creditors' addresses in the ordinary course of business. *222 In some categories of transactions, such as those involving money orders and traveler's checks, adequate address records may not be available. In the case of ordinary corporate debts, however, it is more likely that records will be available. Moreover, as the majority points out, any State is free to require corporations doing business in that State to maintain records of their creditors' addresses. Ante, at 215. In short, the threat of frequent and complicated cases in this area seems remote. It provides little justification for the majority's Cinderella-like compulsion to accommodate this ill-fitting precedential "slipper." From a result that seems both inflexible and inequitable, I dissent.

The majority opinion today purports to apply the rule laid down in to a fact situation not contemplated when that case was decided. In applying that rule to these new facts, it seems to me that the Court exalts the rule but derogates the reasons supporting it. I a case decided within the Court's original jurisdiction, is a unique precedent. Disposition of that case necessarily required a departure from the Court's usual mode of decisionmaking. Our role in this country's scheme of government is ordinarily a restricted one, limited in large measure to the resolution of conflicts calling for the interpretation and application either of statutory acts or of provisions of the Federal Constitution. In the performance of this function, an individual Justice's views as to what he might consider "fair" or "equitable" or "expeditious" are largely immaterial. Infrequently, however, we are called on to resolve disputes arising under the original jurisdiction of the Court (Art. III, 2) in which our judgment is unaided by statutory or constitutional directives. In approaching such cases, we may find, as did the *217 Court in that fairness and expeditiousness provide the guideposts for our decision: "[T]he issue here is not controlled by statutory or constitutional provisions or by past decisions, nor is it entirely one of logic. It is fundamentally a question of ease of administration and of equity." The case before us today requires the application of similar principles, and I agree that Mr. Justice Black's opinion in points the way to the most desirable result. In my view, however, the majority's application of that precedent to the facts of this case offends both the "fairness" and "ease of administration" bases of that opinion. The Court in was asked to decide which States could take title to escheatable intangible personal property in the form of debts owed by Sun Oil Co. to a large number of individual creditors. After rejecting several alternatives offered by the parties, the Court adopted the rule proposed by the State of Florida and approved by the Special Master. Under that rule the power to escheat the debts in question, in the first instance, was to be accorded "to the State of the creditor's last known address as shown by the debtor's books and records." In the "infrequent" case in which no record of last address was available or in which the appropriate State's laws did not provide for the escheat of abandoned intangibles, the property was to go to the State of the debtor's corporate domicile. This disposition recommended itself to the Court for several reasons. The rule was generally consistent with the common-law maxim "mobilia sequuntur personam"[*]*218 under which intangible personal property may be found to follow the domicile of its owner—here the creditor. n. 10. In looking to the residence of the creditor, the rule adopted by the Court recognized that the Company's unclaimed debts were assets of the individual creditors rather than assets of the debtor. Also, in distributing the property among the creditors' States, the rule had the advantage of dividing the property in a manner roughly proportionate to the commercial activities of each State's residents. In using the last-known address as the sole indicator of domicile, the rule would be easy to administer and apply. The Court recognized, of course, that this approach might lead to the escheat of property to a State from which the creditor had removed himself in the period since the debt arose. Yet it concluded that these instances would "tend to a large extent to cancel each other out," and would not disrupt the basic fairness and expeditiousness of the result. Paradoxically, the mechanistic application of the rule to the present case leads ultimately to the defeat of each of the beneficial justifications for that rule. Unlike the records of the numerous debts owed by Sun Oil, Western Union's records may reflect the creditors' addresses for only a relatively small percentage of the transactions. As a consequence, the greater portion of the entire Western Union fund will go to the State of New York—the State of corporate domicile. Effectively then, the obligation of the debtor will be converted into an asset of the debtor's State of domicile to the exclusion of the creditors' States. The Court in specifically repudiated this result on the ground that it was inconsistent with "principles of fairness." It would have "exalt[ed] a minor factor to permit escheat of obligations incurred all over the country by the State in which the debtor happened *219 to incorporate itself." The fact that the Court was willing to permit this result in the few cases in which no record of address was available or in which no law of escheat governed, does not diminish the clear view of the Court that this result would be impermissible as a basis for disposing of more than a small minority of the debts. Yet the decision today ignores the Court's unwillingness to "exalt" the largely coincidental domicile of the corporate debtor. It also disregards the Court's clearly expressed intent that the escheatable property be distributed in proportions roughly comparable to the volume of transactions conducted in each State. Furthermore, the rule today is incompatible with the Court's view in that an easily and inexpensively discernible mode of allocation be utilized. The majority's rule will require the examination of every available money order application to determine whether the applicant filled out the address blank for his own address, or in the case of money order drafts received but not cashed, whether the holder's address had been preserved. Western Union estimated in the stipulated statement of facts that such an item-by-item examination could be undertaken at a cost of approximately $175,000. Report of the Special Master 16. In sum, the invocation of the rule in the manner contemplated by the majority will lead to a result that is neither expeditious nor equitable. II The reasons underlying could best be effectuated by a relatively minor but logical deviation in the manner in which that rule is implemented in this case. Rather than embarking upon a potentially fruitless search for the creditor's last-known address as a rough indicator of domicile, reliance should be placed upon the State where the debtor-creditor relationship was *220 established. In most cases that State is likely also to be the site of the creditor's domicile. In other words, in the case of money orders sent and then returned to the initiating Western Union office because the sendee failed to claim the money, the State in which the money order was purchased may be presumed to be the State of the purchaser-creditor's domicile. And, where the draft has been received by either the initiating party or by the recipient but not negotiated, the State in which the draft was issued may be assumed to be the State of that creditor's domicile. This modification is preferable, first, because it preserves the equitable foundation of the rule. The State of the corporate debtor's domicile is denied a "windfall"; the fund is divided in a proportion approximating the volume of transactions occurring in each State; and the integrity of the notion that these amounts represent assets of the individual purchasers or recipients of money orders is maintained. Secondly, the relevant information would be more easily obtainable. The place of purchase and the office of destination are reflected in Western Union's ledger books and it would, therefore, be unnecessary to examine the innumerable application forms themselves. Since the ledgers are more readily available, the allocation of the fund would be effected at less expense than would be required by the majority's resolution. Despite these advantages, the Special Master rejected this alternative. He reasoned that an undetermined number of these transactions must have taken place outside the creditors' State of domicile. Specifically, he cited the cases in which a New Jersey or Connecticut resident might purchase a money order in New York, or cases in which a resident of Virginia or Maryland might make his purchase in the District of Columbia. Report of the Special Master 18. While such cases *221 certainly exist, they are merely exceptions to a generally reliable rule that money order purchases are likely to have occurred within the State of the purchaser's domicile. That perfection is not achieved is no reason to reject this alternative. The Court recognized that absolute fairness was not obtainable and that the most that could be expected was a rule providing a reasonable approximation. n. 11. Certainly this objection should not be allowed to frustrate the better alternative in favor of one that is less fair and more difficult to administer. III The majority opinion intimates, as I think it must, that the ultimate consequence of its decision today is inconsistent (ante, at 214) with the result in While the opinion appears to recognize that New York will reap the very "windfall" that sought to avoid, its refusal to bend in the face of this consequence goes largely unexplained. Apparently, the basis for its decision is the conviction that the Court's prior precedent was designed to settle the question of escheat of intangible personal property "once and for all." The majority adheres to the existing rule because of some apprehension that flexibility in this case will deprive the Court of a satisfactory test for the resolution of future cases. The opinion anticipates that departure from will leave other cases to be decided on an ad hoc basis, depending in each case on the "adequacy of the debtor's records." Ante, at 215. Although the factual circumstances of future cases cannot be predicted, it is likely that most of such cases can be resolved within the principles of The factual range is limited. The debtor either will or will not maintain creditors' addresses in the ordinary course of business. *222 In some categories of transactions, such as those involving money orders and traveler's checks, adequate address records may not be available. In the case of ordinary corporate debts, however, it is more likely that records will be available. Moreover, as the majority points out, any State is free to require corporations doing business in that State to maintain records of their creditors' addresses. Ante, at 215. In short, the threat of frequent and complicated cases in this area seems remote. It provides little justification for the majority's Cinderella-like compulsion to accommodate this ill-fitting precedential "slipper." From a result that seems both inflexible and inequitable, I dissent.

Justice White

majority

Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn.

https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/

https://www.courtlistener.com/api/rest/v3/clusters/112306/

1988-126

These cases involve the interaction of three federal statutes with respect to the proposed sale of the rail line of the Pittsburgh and Lake Erie Railroad Co. (P&LE). The statutes are the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U.S. C. § 151 et seq.; the Interstate Commerce Act (ICA), 49 U.S. C. § 10101 et seq. (1982 ed. and Supp. V); and the Norris-LaGuardia Act (NLGA), 47 Stat. 70, 29 U.S. C. § 101 et seq. I Petitioner, P&LE, is a small rail carrier owning and operating 182 miles of rail line serving points in Ohio and western Pennsylvania and possessing trackage rights over other lines extending into New York. P&LE has experienced financial problems of increasing severity, having lost $60 million during the five years preceding the onset of these cases. After other efforts to improve its condition failed, notably work force reductions, concessions from its employees, and market expansion, P&LE decided that in order to recoup for its owners any part of their investments it must sell its assets.[1] On July 8, 1987, P&LE agreed to sell its assets for *495 approximately $70 million to a newly formed subsidiary, P&LE Rail Co., Inc. (Railco), of Chicago West Pullman Transportation Corporation (CWP).[2] Railco intended to operate the railroad as P&LE had except that Railco would not assume P&LE's collective-bargaining contracts with its various unions and would need only about 250 employees rather than the 750 then working for P&LE.[3] When the unions representing P&LE's employees were notified of the proposed sale, they asserted that the sale would have an effect on the working conditions of the carrier's employees and therefore was subject to the requirements of the RLA, 45 U.S. C. §§ 152 Seventh and 156, which provide: "§ 152 . . . Seventh. Change in pay, rules, or working conditions contrary to agreement or to section 156 forbidden "No carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title." "§ 156. Procedure in changing rates of pay, rules, and working conditions "Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are *496 being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board."[4] The unions advised that they stood ready to negotiate all aspects of the matter, including the decision to sell the railroad assets. P&LE responded that it was willing to discuss the matter but that § 156 notice and bargaining were not required since the transaction was subject to the jurisdiction of the Interstate Commerce Commission (ICC or Commission) *497 under the ICA and since the requirements of §§ 155 and 156 would intrude on that regime as well as upon management's prerogatives to conduct the affairs of the company with respect to the sales transaction. Most of the unions then responded by themselves filing § 156 notices proposing changes in existing agreements to ameliorate the adverse impacts of the proposed sale upon P&LE's employees. The unions sought guarantees that the sale would not cause any employee to be deprived of employment or to be placed in any worse position with respect to pay or working conditions and that P&LE would require that the purchaser of its rail line assume P&LE's collective-bargaining agreements.[5] P&LE again declined to bargain, asserting that the transaction was within the exclusive jurisdiction of the ICC. On August 19, respondent, Railway Labor Executives' Association (RLEA), on behalf of P&LE's unions, filed suit in the United States District Court for the Western District of Pennsylvania, seeking a declaratory judgment with respect to P&LE's obligations under the RLA *498 and an injunction against the sale pending completion of RLA bargaining obligations. On September 15, 1987, the unions went on strike. P&LE's request for a restraining order against the strike was denied by the District Court on the ground that the NLGA forbade such an order.[6] The proposed sale of assets could not be carried out without compliance with the terms of the ICA, 49 U.S. C. § 10901, which requires that noncarriers seeking to acquire a rail line first obtain a certificate of public convenience and necessity from the ICC. Section 10901(e) specifies the procedures for this purpose and provides that the ICC "may" require the acquiring company "to provide a fair and equitable arrangement for the protection of railroad employees who may be affected thereby no less protective of and beneficial to the interests of such employees than those established pursuant to section 11347 of this title."[7] Section 10505, however, *499 authorizes the Commission to grant exemptions from the requirements of the Act when not necessary to carry out the national transportation policy.[8] Based on its experience with acquisitions under § 10901, the ICC had issued what is known as the Ex Parte No. 392 Class Exemption, see Ex Parte No. 392 (Sub. No. 1), Class Exemption for the Acquisition and Operation of Rail Lines Under 49 U.S. C. 10901, *500 1 I. C. C. 2d 810 (1985) (Ex Parte 392), review denied sub nom. Illinois Commerce Comm'n v. ICC, 260 U. S. App. D. C. 38, 817 F.2d 145 (1987),[9] which provides abbreviated procedures for seeking approval for acquisitions by non-carriers such as Railco of an operating railroad or its assets. The regulatory procedure, see 49 CFR § 1150.32(b) (1987), involved the filing of an application for exemption which would become effective seven days after filing absent contrary notice from the Commission.[10] An interested party could oppose *501 the exemption by filing a petition to revoke at any time, after consideration of which the ICC could revoke the exemption in whole or in part or impose labor protective provisions. The ICC had indicated, however, that only in exceptional situations would such protective provisions be imposed. Accordingly, Railco on September 19, 1987, filed a notice of exemption pursuant to Ex Parte 392. After denying various requests by the unions to reject the notice of exemption and stay the sale, the Commission allowed the exemption to become effective on September 26. A petition to revoke filed by RLEA on October 2 is still pending before the Commission. At no time did RLEA request imposition of labor protective provisions pursuant to the Commission's authority under § 10901.[11] On October 5, 1987, P&LE reapplied to the District Court for an order restraining the strike. The District Court granted the request on October 8, ruling that the authorization of the sale by the ICC negated any duty that P&LE had to bargain over the effects of the sale on its employees, and that the NLGA did not forbid issuance of an injunction under such circumstances.[12] On October 26, however, the Court of Appeals summarily reversed, holding that the ICA did not require accommodation of the NLGA's restrictions on the District Court's powers. 831 F.2d 1231 (CA3 1987). A remand was ordered to determine whether the sale or strike violated the RLA. The unions did not resume their strike when the Court of Appeals reversed the District Court's injunction, but threatened to do so if P&LE attempted to consummate the sale to Railco.[13] *502 The case in the District Court then went forward. Addressing the unions' request for an injunction, the District Court held that although P&LE did not have a duty to bargain over its decision to sell, P&LE was required by the RLA to bargain over the effects of the sale on employees, and that the status quo provision of § 156 required that its bargaining obligations under the RLA must be satisfied before the sale could be consummated despite approval of the transaction by the ICC acting pursuant to the ICA. 677 F. Supp. 830 (WD Pa. 1987). A divided Court of Appeals affirmed the judgment of the District Court. 845 F.2d 420 (CA3 1988). We granted P&LE's petition in No. 87-1888, challenging the Court of Appeals' affirmance of the injunction against the sale issued by the District Court, as well as P&LE's petition in No. 87-1589, asking for reversal of the judgment of the Court of Appeals setting aside the strike injunction issued by the District Court. 488 U.S. 965 (1988). II In No. 87-1888, the issue is whether the RLA, properly construed, required or authorized an injunction against closing the sale of P&LE's assets to Railco because of an unsatisfied duty to bargain about the effects of the sale on P&LE's employees. We first address whether the RLA required P&LE to give notice of its decision to sell and to bargain about the effects of the sale. We then consider whether the unions' own notices and the status quo provision of § 156 justified the injunction. *503 A P&LE submits that neither its decision to sell nor the impact that sale of the company might have had on its employees was a "change in agreements affecting rates of pay, rules, or working conditions" (emphasis added) within the meaning of the RLA, 45 U.S. C. § 156, and that P&LE therefore had no duty to give notice or to bargain with respect to these matters. The Court of Appeals rejected this submission, focusing on the effects the sale would have on employees and concluding that the "loss of jobs by possibly two-thirds of the employees clearly would require a `change in agreements affecting rates of pay, rules, or working conditions.' " 845 F.2d, at 428. The court did not point out how the proposed sale would require changing any specific provision of any of P&LE's collective-bargaining agreements. It did not suggest that any of those agreements dealt with the possibility of the sale of the company, sought to confer any rights on P&LE's employees in the event of the sale, or guaranteed that jobs would continue to be available indefinitely.[14] What P&LE proposed to do would remove it from the railroad business and terminate its position as a railroad employer; and like the Court of Appeals, RLEA does not explain how such action would violate or require changing any of the provisions of the unions' written contracts with P&LE. Of course, not all working conditions to which parties may have agreed are to be found in written contracts. Detroit & Toledo Shore Line R. Co. v. Transportation Union, 396 U.S. 142, 154-155 (1969) (Shore Line). It may be that *504 "in the context of the relationship between the principals, taken as a whole, there is a basis for implying an understanding on the particular practice involved." Id., at 160 (Harlan, J., dissenting). But the Court of Appeals did not purport to find an implied agreement that P&LE would not go out of business, would not sell its assets, or if it did, would protect its employees from the adverse consequences of such action. Neither does RLEA. We therefore see no basis for holding that P&LE should have given a § 156 notice of a proposed "change" in its express or implied agreements with the unions when it contracted to sell its assets to Railco. Nor was it, based on its own decision to sell, obligated to bargain about the impending sale or to delay its implementation. We find RLEA's arguments to the contrary quite unconvincing. B There is more substance to the Court of Appeals' holding, and to RLEA's submission, that the unions' § 156 notices proposed far-reaching changes in the existing agreements over which P&LE was required to bargain and that the status quo provision of § 156 prohibited P&LE from going forward with the sale pending completion of the "purposely long and drawn out" procedures which the Act requires to be followed in order to settle a "major" dispute. Railway Clerks v. Florida East Coast R. Co., 384 U.S. 238, 246 (1966). Section 156 provides that when a notice of change in agreements has been given, "rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155." Relying on Shore Line, RLEA argues, and the Court of Appeals held, that when a rail labor union files a § 156 notice to change the terms of an agreement, the "working conditions" that the carrier may not change pending conclusion of the bargaining process are not limited to those contained in express or implied agreements but include, as Shore Line held, "those actual, objective working conditions and practices, broadly conceived, *505 which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute." 396 U.S., at 153. RLEA submits that the relationship of employer-employee and the state of being employed are among those working conditions that may not be changed until the RLA procedures are satisfied. We are unconvinced, for several reasons, that this is the case. The facts of Shore Line, briefly stated, were these: Shore Line operated 50 miles of rail line between Lang Yard in Toledo, Ohio, and Dearoad Yard near Detroit, Michigan. For many years, all train and engine crews reported for duty and finished the day at Lang Yard. When it was necessary to perform switching and other operations at other points, crews were transported at railroad expense to those outlying points. The company proposed to establish outlying work assignments at Trenton, Michigan, some 35 miles north of Lang Yard. Crews assigned there would have to report there. The proposed change was not forbidden by, and would not have violated, the parties' collective-bargaining agreement. The union filed a § 156 notice seeking to amend the agreement to forbid the railroad to make outlying assignments. The issue was not settled by the parties and the union called for mediation. While the Mediation Board proceedings were pending, the railroad posted a bulletin creating the disputed assignment at Trenton. The union threatened a strike, the company sued to restrain the strike, and the union counterclaimed for an injunction relying on the status quo provision of § 156. The District Court and the Court of Appeals held for the union, and we affirmed over a dissent by Justice Harlan, joined by Chief Justice Burger. We held that even though Shore Line did not propose to change any of its agreements, the status quo provision of § 156 — "rates of pay, rules, or working conditions shall not be altered" pending exhaustion of the required procedure — forbade any change by Shore Line in the "objective working conditions" then existing. 396 U.S., at 153. We noted that had it been *506 the practice to make outlying work assignments, the company would have been within its rights to make the Trenton assignment; but the prior practice, the objective working condition, was to have crews report for work and come back to Lang Yard. That working condition could not be changed pending resolution of the dispute without violating the status quo provision of § 156 even though there was nothing in the agreement between the parties to prevent outlying assignments. Id., at 153-154. Shore Line, in our view, does not control these cases. In the first place, our conclusion in that case that the status quo provision required adherence not only to working conditions contained in express or implied agreements between the railroad and its union but also to conditions "objectively" in existence when the union's notice was served, and that otherwise could be changed without violating any agreement, extended the relevant language of § 156 to its outer limits, and we should proceed with care before applying that decision to the facts of these cases.[15] Second, reporting at Lang Yard, we thought, had been the unquestioned practice for many years, and we considered it reasonable for employees to deem it sufficiently established that it would not be changed without bargaining and compliance with the status quo provisions of the RLA. *507 Third, and more fundamentally, the decision did not involve a proposal by the railroad to terminate its business. Here, it may be said that the working condition existing prior to the § 156 notice was that P&LE was operating a railroad through the agency of its employees, but there was no reason to expect, simply from the railroad's long existence, that it would stay in business, especially in view of its losses, or that rail labor would have a substantial role in the decision to sell or in negotiating the terms of the sale. Whatever else Shore Line might reach, it did not involve the decision of a carrier to quit the railroad business, sell its assets, and cease to be a railroad employer at all, a decision that we think should have been accorded more legal significance than it received in the courts below. Our cases indicate as much. In Textile Workers v. Darlington Mfg. Co., 380 U.S. 263 (1965), an employer closed its textile mill when a union won a representation election. The National Labor Relations Board concluded that this action was an unfair labor practice under §§ 8(a)(1) and (3) of the National Labor Relations Act (NLRA). The Court of Appeals disagreed, holding that the complete or partial liquidation of an employer's business even though motivated by antiunion animus was not an unfair practice. We affirmed in part,[16] ruling that insofar as the NLRA is concerned, an employer "has an absolute right to terminate his entire business for any reason he pleases. . . ." 380 U.S., at 268. Whatever may be the limits of § 8(a)(1), we said, an employer's decision to terminate its business is one of those decisions "so peculiarly matters of management prerogative that they would never constitute violations" of that section. Id., at 269. Neither would ceasing business and refusing to bargain about it violate § 8(a)(3) or § 8(a)(5) even if done with antiunion animus. Id., at 267, n. 5, 269-274. "A proposition that a single businessman cannot choose to go out of business if he wants to would represent *508 such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Relations Act." Id., at 270. We found neither.[17] *509 Although Darlington arose under the NLRA, we are convinced that we should be guided by the admonition in that case that the decision to close down a business entirely is so much a management prerogative that only an unmistakable expression of congressional intent will suffice to require the employer to postpone a sale of its assets pending the fulfillment of any duty it may have to bargain over the subject matter of union notices such as were served in this litigation. Absent statutory direction to the contrary, the decision of a railroad employer to go out of business and consequently to reduce to zero the number of available jobs is not a change in the conditions of employment forbidden by the status quo provision of § 156. In these cases, P&LE concluded that it must sell its assets, and its agreement to sell to Railco, if implemented, would have removed it from the railroad business; no longer would it be a railroad employer. No longer would it need the services of members of the rail unions. The RLEA concedes that had the collective-bargaining agreements expressly waived bargaining concerning sale of P&LE's assets, the unions' § 156 notices to change the agreements could not trump the terms of the agreements and could not delay the sale. Brief for Respondent RLEA 44. We think the same result follows where the agreement is silent on the matter and the railroad employer has proceeded in accordance with the ICA. In these circumstances, there is little or no basis for the unions to expect that a § 156 notice would be effective to delay the company's departure from the railroad business. Congress clearly requires that sales transactions like P&LE's proposal must satisfy the requirements of the ICA, but we find nothing in the RLA to prevent the immediate consummation of P&LE's contract to sell. When the ICC approved the sale by permitting the Ex Parte 392 exemption to become effective, P&LE was free to close the transaction and should not have been enjoined from doing so. *510 This construction of the RLA also responds to our obligation to avoid conflicts between two statutory regimes, namely, the RLA and ICA, that in some respects overlap. As the Court has said, we "are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551 (1974). We should read federal statutes "to give effect to each if we can do so while preserving their sense and purpose." Watt v. Alaska, 451 U.S. 259, 267 (1981); see also United States v. Fausto, 484 U.S. 439, 453 (1988). We act accordingly in this litigation. Congress has exercised its Commerce Clause authority to regulate rail transportation for over a century. See Act to regulate commerce of 1887 (the ICA), ch. 104, 24 Stat. 379. In doing so, Congress has assigned to the ICC plenary authority over rail transactions, ranging from line extensions, consolidations, and abandonments, to acquisitions. In particular, the ICA in 49 U.S. C. § 10901(a) permits noncarriers to acquire a rail line only if the ICC determines that "the present or future public convenience and necessity require or permit" the rail acquisition and operation. The ICC may approve certification on satisfaction of various conditions. Specifically, it has authority to impose labor protection provisions though it is not obligated to do so. § 10901(e). Acting pursuant to § 10505, the ICC, in its Ex Parte 392 exemption proceedings, declared all noncarrier acquisitions presumptively exempt from § 10901 regulation. Such transactions would be deemed approved seven days after a notice filed by the acquiring entities. 49 CFR § 1150.32(b) (1987). And absent a showing of exceptional circumstances, which rail labor was entitled to demonstrate, labor protection provisions would not be imposed. The Ex Parte 392 procedures, and the ICA, § 10505 exemption authority generally, like amendments to ICA in the last two *511 decades, see, e. g., the Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. 94-210, 90 Stat. 31; the Staggers Rail Act of 1980, Pub. L. 96-448, 94 Stat. 1895, aimed at reversing the rail industry's decline through deregulatory efforts, above all by streamlining procedures to effectuate economically efficient transactions. Here P&LE agreed to sell its assets to Railco. The transaction was presented to the ICC and an Ex Parte 392 exemption was requested. The ICC rejected the unions' applications to stay or reject the exemption, which became effective seven days after it was requested. The unions then successfully sought an injunction delaying the closing of the transaction based on their § 156 notices. The Court of Appeals several times noted the tension between the two regimes, but concluded that the provisions of the RLA left no room for a construction easing those tensions. This was the case even though the injunction that was affirmed would likely result in cancellation of P&LE's sale and the frustration of Congress' intent through ICA amendments to deregulate the rail and air industries generally and more specifically to assist small rail lines with financial problems. We disagree with that conclusion, for as we have said, we are confident that the RLA is reasonably subject to a construction that would, at least to a degree, harmonize the two statutes.[18] The injunction, which effectively prevented the sale from going forward, should not have been granted. *512 C Our holding in these cases, which rests on our construction of the RLA and not on the pre-emptive force of the ICA, is that petitioner was not obligated to serve its own § 156 notice on the unions in connection with the proposed sale. We also conclude that the unions' notices did not obligate P&LE to maintain the status quo and postpone the sale beyond the time the sale was approved by the Commission and was scheduled to be consummated. We do not hold, however, that P&LE had no duty at all to bargain in response to the unions' § 156 motions. The courts below held, and RLEA agrees, that P&LE's decision to sell, as such, was not a bargainable subject. The disputed issue is whether P&LE was required to bargain about the effects that the sale would or might have upon its employees. P&LE, in our view, was not entirely free to disregard the unions' demand that it bargain about such effects. When the unions' notices were served, however, the terms of P&LE's agreement with Railco were more or less settled, and P&LE's decision to sell on those terms had been made. To the extent that the unions' demands could be satisfied only by the assent of the buyers, they sought to change or dictate the terms of the sale, and in effect challenged the decision to sell itself. At that time, P&LE was under no obligation to bargain about the terms it had already negotiated. To the extent that the unions' proposals could be satisfied by P&LE itself, those matters were bargainable but only until the date for closing the sale arrived, which, of course, could not occur until the Ex Parte 392 exemption became effective.[19] We are therefore constrained to reverse the Court of Appeals in No. 87-1888. *513 III In No. 87-1589, the issue is whether the Court of Appeals was correct in setting aside the injunction against the strike issued on October 8, 1987. At that time, the Ex Parte 392 exemption had become effective, and the District Court held that because the ICC had in effect authorized the sale and had ruled that delay would be prejudicial to the parties and the public interests, the NLGA prohibition against issuing injunctions in labor dispute cases must be accommodated to the ICC's decision that the sale of assets should go forward. It was this decision, based on the legal significance of the ICA and its impact on the NLGA, that the Court of Appeals summarily reversed. We agree with that decision. We have held that the NLGA § 4 general limitation on district courts' power to issue injunctions in labor disputes must be accommodated to the more specific provisions of the RLA: "[T]he District Court has jurisdiction and power to issue necessary injunctive orders" to enforce compliance with the requirements of the RLA "notwithstanding the provisions of the Norris-LaGuardia Act." Trainmen v. Howard, 343 U.S. 768, 774 (1952). Thus, a union may be enjoined from striking when the dispute concerns the interpretation or application of its contract and is therefore subject to compulsory arbitration. Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30 (1957). "[T]he specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act." Id., at 41-42. The same accommodation of the NLGA to the specific provisions of the NLRA must be made. A union that has agreed to arbitrate contractual disputes and is subject to a no-strike clause may be enjoined from striking despite the NLGA. Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 (1970). Petitioner contends that the NLGA must likewise be accommodated to the procedures mandated by Congress in 49 U.S. C. § 10901 specifically the authority of the ICC to impose labor protective provisions, the right of rail *514 labor to seek such provisions from the ICC, and its right to judicial review if dissatisfied. It is urged that the ICA provides a comprehensive scheme for the resolution of labor protection issues arising out of ICC-regulated transactions and that rail labor must take advantage of those procedures rather than strike. We are unpersuaded that this is the case. The prohibition of the NLGA must give way when necessary to enforce a duty specifically imposed by another statute. But no applicable provision has been called to our attention that imposes any duty on rail unions to participate in ICC proceedings and to seek ICC protections with which they must be satisfied. Furthermore, labor protection provisions run against the acquiring railroad rather than the seller. Yet here it is with the seller, P&LE, that the unions wanted to bargain, seeking to ease the adverse consequences of the sale. To that end, the unions served § 156 notices, which at least to some extent obligated P&LE to bargain until its transaction was closed. We find nothing in the ICA that relieved P&LE of that duty, nor anything in that Act that empowers the ICC to intrude into the relationship between the selling carrier and its railroad unions. We are thus quite sure that the NLGA forbade an injunction against that strike unless the strike was contrary to the unions' duties under the RLA. As to that issue, the Court of Appeals stated: "We intimate no view as to whether the provisions of the Railway Labor Act are applicable to this dispute so that the district court would be entitled to enjoin the strike while that Act's dispute resolution mechanisms are underway. RLEA's complaint seeking a declaration that the Railway Labor Act is applicable to this dispute is the merits issue before the district court." 831 F.2d, at 1237. On remand, the District Court held that the RLA was indeed applicable to the dispute and on that basis issued an injunction against P&LE. It did not, however, ever address the question whether the unions' *515 strike, which occurred after their suit was filed, was enjoinable under the RLA. Neither did the Court of Appeals deal with that issue in affirming the District Court. P&LE perfunctorily asserts in its briefs in this Court that the strike injunction was proper because the unions were obligated to bargain rather than strike after their § 156 notices were served. RLEA did not respond to this assertion. With the case in this position, we shall not pursue the issue. Instead, we vacate the judgment of the Court of Appeals, and leave the matter, if it is a live issue, to be dealt with on remand. IV The judgment of the Court of Appeals in No. 87-1888 is reversed and the judgment in No. 87-1589 is vacated, and the cases are remanded for further proceedings consistent with this opinion. So ordered. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in part and dissenting in part. Regulated utilities do not have the same freedom to respond to market pressures that unregulated firms have.[1] They may not raise rates or cut services, for example, without permission from a regulatory agency. Most significantly for these cases, they may neither enter nor leave the market without agency approval. Ignoring this principle, the Court in Part II of its opinion arrives at a result that, while perhaps preferable as a matter of policy, contradicts our previous interpretations of the relevant statute.[2] *516 The railroad industry long has been the subject of governmental regulation.[3] A year after this Court held that individual States were powerless to regulate rail lines extending beyond their boundaries, Wabash, S. L. & P. R. Co. v. Illinois, 118 U.S. 557 (1886), Congress established the Interstate Commerce Commission (ICC) to regulate economic aspects of the rail industry. Interstate Commerce Act, 49 U.S. C. § 10101 et seq. (1982 ed. and Supp. V). Regulation of employment relationships within the rail industry followed,[4] and in 1926, Congress enacted the Railway Labor Act (RLA), 45 U.S. C. § 151 et seq. The intervening six decades were marked by relatively peaceful coexistence between the two statutes. During the course of the employment relationship, the RLA provided the means for resolving disputes. See ante, at 496, n. 4; Consolidated Rail Corporation v. Railway Labor Executives' Assn., ante, at 302-304. If a railroad sought to end that relationship by sale, consolidation, or abandonment, the ICC routinely conditioned approval on the railroad's acceptance of either job protection or some form of severance pay for employees who would be affected by the change. See United States v. Lowden, 308 U.S. 225 (1939).[5] Cf. ante, at 498. *517 This symbiosis ended in 1985, when the ICC announced that it no longer would impose labor protective conditions on sales of short-line railroads unless exceptional circumstances were shown. Ex Parte No. 392 (Sub. No. 1), Class Exemption for the Acquisition and Operation of Rail Lines Under 49 U.S. C. 10901, 1 I. C. C. 2d 810, 815 (1985), review denied sub nom. Illinois Commerce Comm'n v. ICC, 260 U. S. App. D. C. 38, 817 F.2d 145 (1987); see ante, at 498-501. Suddenly it became important for railroad unions to obtain such labor protections through collective bargaining. Unlike other employment contracts, however, rail labor agreements are altered not by periodic renegotiation but by notification, pursuant to § 6 of the RLA, 45 U.S. C. § 156, of a desire to change terms in the agreements. See Tr. of Oral Arg. 66-67. Thus it is not surprising that the unions in this litigation did not seek labor protective provisions until — just 18 months after the ICC abdicated its traditional protective role — plans to sell the railroad surfaced.[6] There is no disagreement that labor protective provisions related to the effects of an abandonment or sale may be the subject of collective bargaining. It follows, I believe, that when railway labor unions request the inclusion of such provisions *518 in their collective-bargaining agreements by proper statutory notice, see ante, at 496-497, and n. 5, the employer must maintain the status quo during the statutorily mandated negotiating process or risk a strike as a consequence of its breach of that duty. See §§ 2 First, Seventh of the RLA, 45 U.S. C. §§ 152 First, Seventh. The Court admits the force of this proposition and acknowledges that an employer has some duty to bargain when a sale is announced. Ante, at 504, 512. Nevertheless, it indicates that this particular dispute did not obligate the railroad to preserve the status quo, for the Court would prohibit any bargaining that "in effect challenged the decision to sell," and would allow negotiations to cease as soon as the sale is closed. Ante, at 512.[7] This diminution of the employer's duty contravenes two of our decisions interpreting the RLA. In Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U.S. 330 (1960), a railroad had decided, with the approval of state regulatory commissions, to abandon a large number of its local stations and thus remove several hundred station attendants from the payroll. This Court held that because the RLA "command[s] that employees as well as railroads exert every reasonable effort to settle all disputes `concerning rates of pay, rules, and working conditions,' " the union had a right to strike to prevent the railroad from implementing the partial abandonment without bargaining over effects. Id., at 339 (quoting § 2 First of the RLA, 45 U.S. C. § 152 First). The Court continued: *519 "It would stretch credulity too far to say that the Railway Labor Act, designed to protect railroad workers, was somehow violated by the union acting precisely in accordance with that Act's purpose to obtain stability and permanence in employment for workers. There is no express provision of law, and certainly we can infer none from the Interstate Commerce Act, making it unlawful for unions to want to discuss with railroads actions that may vitally and adversely affect the security, seniority and stability of railroad jobs." 362 U.S., at 339-340. Telegraphers thus holds that if management decides to abandon a significant part of a railroad's business, the impact of that decision on employees' job security is a proper subject for bargaining under the RLA. Detroit & Toledo Shore Line R. Co. v. Transportation Union, 396 U.S. 142 (1969) (Shore Line), concerned a railroad's proposal to make new work assignments, a change neither authorized nor prohibited by the collective-bargaining agreement. The Court held that once the union had served notice of its desire to bargain, the railroad was obligated to maintain the status quo until completion of the RLA's " `purposely long and drawn out' " bargaining process. Id., at 149 (quoting Railway Clerks v. Florida East Coast R. Co., 384 U.S. 238, 246 (1966)). It further rejected the railroad's argument that the "status quo" encompassed only working conditions expressed in an agreement between the parties: "[T]he language of § 6 simply does not say what the railroad would have it say. Instead, the section speaks plainly of `rates of pay, rules, or working conditions' without any limitation to those obligations already embodied in collective agreements. More important, we are persuaded that the railroad's interpretation of this section is sharply at variance with the overall design and purpose of the Railway Labor Act." 396 U.S., at 148. *520 The Court therefore construed "status quo" to mean "those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute." Id., at 153. Today the Court proffers three reasons why Shore Line does not control these cases. First, it asserts that the Shore Line holding that "status quo" includes "conditions `objectively' in existence when the union's notice was served" stretched the language of the statute "to its outer limits," ante, at 506. I am not at all sure that is true; even if it is, the holding is unambiguous and has the force of law. Second, the Court suggests that the fact that the work assignment changed in Shore Line had been in effect for many years justified an expectation "that it would not be changed without bargaining and compliance with the status quo provisions of the RLA." Ante, at 506. This effectively restates Justice Harlan's argument in dissent that while not limited to the terms of written agreements, the status quo obligation is limited to a change in settled practice. See Shore Line, 396 U. S., at 159-160. The Court's emphasis on those dissenting remarks avails it nothing, because the instant controversy also arose out of a change in established procedure. By either a subjective or objective measure, therefore, it is reasonable to conclude that these employees' jobs are among the "working conditions" that must be preserved throughout the bargaining process. Third, and most importantly, the Court points out that in contrast with these cases, the railroad in Shore Line had not proposed "to quit the railroad business, sell its assets, and cease to be a railroad employer at all," ante, at 507. The simple reply is that, in spite of claims of " `managerial prerogative' " much like those advanced here,[8] the Court in Telegraphers *521 held that the effects of a railroad's decision to terminate a part of its business constituted a proper subject of bargaining. There is no relevant difference between the partial abandonment in Telegraphers and the transfer of ownership proposed in these cases: in both, rail service would continue as before, but many employees would lose their jobs. Management's motive in Telegraphers, to cut costs by eliminating a large number of dispensable jobs, was of course perfectly reasonable. Thus when the Court held that the RLA required the railroad to bargain over the effects of the change, Justice Clark wrote: "Today the Court tells the railroad that it must bargain with the union or suffer a strike. The latter would be the death knell of the railroad. Hence, for all practical purposes, the Court is telling the railroad that it must secure the union's approval before severing the hundreds of surplus employees now carried on its payroll. Everyone knows what the answer of the union will be. It is like the suitor who, when seeking the hand of a young lady, was told by her to `go to father.' But, as the parody goes, `She knew that he knew that her father was dead; she knew that he knew what a life he had led; and she knew that he knew what she meant when she said "go to father." ' " 362 U.S., at 343-344 (dissenting opinion). Had the sale in these cases proceeded, the railroad would have operated the same service with a work force of 250 as compared to 750 employees. Ante, at 495. The economic benefits of that reduction are as obvious as those that would have been achieved by closing obsolete stations on the railroad system in Telegraphers. It is just as obvious, I believe, that *522 the RLA again commands bargaining. As Judge Becker noted in his opinion for the Court of Appeals: "We are fully aware of the unfortunate ramifications and irony of our decision. A bargaining order, and a status quo injunction, designed to foster conciliation, promote labor peace, and ultimately keep the rails running, may ultimately have the perverse effect of destroying the only chance P & LE has for survival and perhaps even the very jobs that the unions are now trying to protect. Although we are not happy with this result, we feel constrained to reach it, because the Supreme Court has appropriately admonished the judiciary not to apply its own brand of `common sense' in the face of a contrary statutory mandate." 845 F.2d 420, 446 (CA3 1988) (citing TVA v. Hill, 437 U.S. 153, 193-195 (1978)). To evade the natural result of adherence to Shore Line and Telegraphers, the Court relies on two later opinions declaring that "an employer has the absolute right to terminate his entire business for any reason he pleases," Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 268 (1965), and that the consequences of a partial closure are not a mandatory subject of bargaining, First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). See ante, at 507-509, and n. 17. But those opinions interpreted the strictures that the National Labor Relations Act places on an unregulated industry. As we noted in First National Maintenance Corp., that is a situation far different from the RLA's governance of a regulated industry.[9] *523 At issue today is the RLA's regulation of a railroad's freedom to leave the market. Perhaps the RLA's restrictions on that freedom, as interpreted in Telegraphers and Shore Line, do not best serve national transportation interests. But since Congress has not overruled those interpretations, it is, as Judge Becker observed, inappropriate for judges to undertake to fill the perceived policy void. For these reasons, I would affirm the judgment of the Court of Appeals in No. 87-1888.

These cases involve the interaction of three federal statutes with respect to the proposed sale of the rail line of the Pittsburgh and Lake Erie Railroad Co. (P&LE). The statutes are the Railway Labor Act (RLA), as amended, 45 U.S. C. 151 et seq.; the Interstate Commerce Act (ICA), 49 U.S. C. 10101 et seq. (1982 ed. and Supp. V); and the Norris-LaGuardia Act (NLGA), 29 U.S. C. 101 et seq. I Petitioner, P&LE, is a small rail carrier owning and operating 182 miles of rail line serving points in Ohio and western Pennsylvania and possessing trackage rights over other lines extending into New York. P&LE has experienced financial problems of increasing severity, having lost $60 million during the five years preceding the onset of these cases. After other efforts to improve its condition failed, notably work force reductions, concessions from its employees, and market expansion, P&LE decided that in order to recoup for its owners any part of their investments it must sell its assets.[1] On July 8, P&LE agreed to sell its assets for *495 approximately $70 million to a newly formed subsidiary, P&LE Rail Co., Inc. (Railco), of Chicago West Pullman Transportation Corporation (CWP).[2] Railco intended to operate the railroad as P&LE had except that Railco would not assume P&LE's collective-bargaining contracts with its various unions and would need only about 250 employees rather than the 750 then working for P&LE.[3] When the unions representing P&LE's employees were notified of the proposed sale, they asserted that the sale would have an effect on the working conditions of the carrier's employees and therefore was subject to the requirements of the RLA, 45 U.S. C. 152 Seventh and 156, which provide: " 152 Seventh. Change in pay, rules, or working conditions contrary to agreement or to section 156 forbidden "No carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title." " 156. Procedure in changing rates of pay, rules, and working conditions "Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are *496 being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board."[4] The unions advised that they stood ready to negotiate all aspects of the matter, including the decision to sell the railroad assets. P&LE responded that it was willing to discuss the matter but that 156 notice and bargaining were not required since the transaction was subject to the jurisdiction of the Interstate Commerce Commission (ICC or Commission) *497 under the ICA and since the requirements of 155 and 156 would intrude on that regime as well as upon management's prerogatives to conduct the affairs of the company with respect to the sales transaction. Most of the unions then responded by themselves filing 156 notices proposing changes in existing agreements to ameliorate the adverse impacts of the proposed sale upon P&LE's employees. The unions sought guarantees that the sale would not cause any employee to be deprived of employment or to be placed in any worse position with respect to pay or working conditions and that P&LE would require that the purchaser of its rail line assume P&LE's collective-bargaining agreements.[5] P&LE again declined to bargain, asserting that the transaction was within the exclusive jurisdiction of the ICC. On August 19, respondent, Railway Labor Executives' Association (RLEA), on behalf of P&LE's unions, filed suit in the United States District Court for the Western District of Pennsylvania, seeking a declaratory judgment with respect to P&LE's obligations under the RLA *498 and an injunction against the sale pending completion of RLA bargaining obligations. On September 15, the unions went on strike. P&LE's request for a restraining order against the strike was denied by the District Court on the ground that the NLGA forbade such an order.[6] The proposed sale of assets could not be carried out without compliance with the terms of the ICA, 49 U.S. C. 10901, which requires that noncarriers seeking to acquire a rail line first obtain a certificate of public convenience and necessity from the ICC. Section 10901(e) specifies the procedures for this purpose and provides that the ICC "may" require the acquiring company "to provide a fair and equitable arrangement for the protection of railroad employees who may be affected thereby no less protective of and beneficial to the interests of such employees than those established pursuant to section 11347 of this title."[7] Section 10505, however, *499 authorizes the Commission to grant exemptions from the requirements of the Act when not necessary to carry out the national transportation policy.[8] Based on its experience with acquisitions under 10901, the ICC had issued what is known as the Ex Parte No. 392 Class Exemption, see Ex Parte No. 392 (Sub. No. 1), Class Exemption for the Acquisition and Operation of Rail s Under 49 U.S. C. 10901, *500 1 I. C. C. 2d 810 (1985) (Ex Parte 392), review denied sub nom. Illinois Commerce[9] which provides abbreviated procedures for seeking approval for acquisitions by non-carriers such as Railco of an operating railroad or its assets. The regulatory procedure, see 49 CFR 1150.32(b) involved the filing of an application for exemption which would become effective seven days after filing absent contrary notice from the Commission.[10] An interested party could oppose *501 the exemption by filing a petition to revoke at any time, after consideration of which the ICC could revoke the exemption in whole or in part or impose labor protective provisions. The ICC had indicated, however, that only in exceptional situations would such protective provisions be imposed. Accordingly, Railco on September 19, filed a notice of exemption pursuant to Ex Parte 392. After denying various requests by the unions to reject the notice of exemption and stay the sale, the Commission allowed the exemption to become effective on September 26. A petition to revoke filed by RLEA on October 2 is still pending before the Commission. At no time did RLEA request imposition of labor protective provisions pursuant to the Commission's authority under 10901.[11] On October 5, P&LE reapplied to the District Court for an order restraining the strike. The District Court granted the request on October 8, ruling that the authorization of the sale by the ICC negated any duty that P&LE had to bargain over the effects of the sale on its employees, and that the NLGA did not forbid issuance of an injunction under such circumstances.[12] On October 26, however, the Court of Appeals summarily reversed, holding that the ICA did not require accommodation of the NLGA's restrictions on the District Court's powers. A remand was ordered to determine whether the sale or strike violated the RLA. The unions did not resume their strike when the Court of Appeals reversed the District Court's injunction, but threatened to do so if P&LE attempted to consummate the sale to Railco.[13] *502 The case in the District Court then went forward. Addressing the unions' request for an injunction, the District Court held that although P&LE did not have a duty to bargain over its decision to sell, P&LE was required by the RLA to bargain over the effects of the sale on employees, and that the status quo provision of 156 required that its bargaining obligations under the RLA must be satisfied before the sale could be consummated despite approval of the transaction by the ICC acting pursuant to the ICA. A divided Court of Appeals affirmed the judgment of the District Court. We granted P&LE's petition in No. 87-1888, challenging the Court of Appeals' affirmance of the injunction against the sale issued by the District Court, as well as P&LE's petition in No. 87-1589, asking for reversal of the judgment of the Court of Appeals setting aside the strike injunction issued by the District Court. II In No. 87-1888, the issue is whether the RLA, properly construed, required or authorized an injunction against closing the sale of P&LE's assets to Railco because of an unsatisfied duty to bargain about the effects of the sale on P&LE's employees. We first address whether the RLA required P&LE to give notice of its decision to sell and to bargain about the effects of the sale. We then consider whether the unions' own notices and the status quo provision of 156 justified the injunction. *503 A P&LE submits that neither its decision to sell nor the impact that sale of the company might have had on its employees was a "change in agreements affecting rates of pay, rules, or working conditions" (emphasis added) within the meaning of the RLA, 45 U.S. C. 156, and that P&LE therefore had no duty to give notice or to bargain with respect to these matters. The Court of Appeals rejected this submission, focusing on the effects the sale would have on employees and concluding that the "loss of jobs by possibly two-thirds of the employees clearly would require a `change in agreements affecting rates of pay, rules, or working conditions.' " The court did not point out how the proposed sale would require changing any specific provision of any of P&LE's collective-bargaining agreements. It did not suggest that any of those agreements dealt with the possibility of the sale of the company, sought to confer any rights on P&LE's employees in the event of the sale, or guaranteed that jobs would continue to be available indefinitely.[14] What P&LE proposed to do would remove it from the railroad business and terminate its position as a railroad employer; and like the Court of Appeals, RLEA does not explain how such action would violate or require changing any of the provisions of the unions' written contracts with P&LE. Of course, not all working conditions to which parties may have agreed are to be found in written contracts. Detroit & Toledo Shore R. It may be that *504 "in the context of the relationship between the principals, taken as a whole, there is a basis for implying an understanding on the particular practice involved." But the Court of Appeals did not purport to find an implied agreement that P&LE would not go out of business, would not sell its assets, or if it did, would protect its employees from the adverse consequences of such action. Neither does RLEA. We therefore see no basis for holding that P&LE should have given a 156 notice of a proposed "change" in its express or implied agreements with the unions when it contracted to sell its assets to Railco. Nor was it, based on its own decision to sell, obligated to bargain about the impending sale or to delay its implementation. We find RLEA's arguments to the contrary quite unconvincing. B There is more substance to the Court of Appeals' holding, and to RLEA's submission, that the unions' 156 notices proposed far-reaching changes in the existing agreements over which P&LE was required to bargain and that the status quo provision of 156 prohibited P&LE from going forward with the sale pending completion of the "purposely long and drawn out" procedures which the Act requires to be followed in order to settle a "major" dispute. Railway Section 156 provides that when a notice of change in agreements has been given, "rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155." Relying on Shore RLEA argues, and the Court of Appeals held, that when a rail labor union files a 156 notice to change the terms of an agreement, the "working conditions" that the carrier may not change pending conclusion of the bargaining process are not limited to those contained in express or implied agreements but include, as Shore held, "those actual, objective working conditions and practices, broadly conceived, *505 which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute." RLEA submits that the relationship of employer-employee and the state of being employed are among those working conditions that may not be changed until the RLA procedures are satisfied. We are unconvinced, for several reasons, that this is the case. The facts of Shore briefly stated, were these: Shore operated 50 miles of rail line between Lang Yard in Toledo, Ohio, and Dearoad Yard near Detroit, Michigan. For many years, all train and engine crews reported for duty and finished the day at Lang Yard. When it was necessary to perform switching and other operations at other points, crews were transported at railroad expense to those outlying points. The company proposed to establish outlying work assignments at Trenton, Michigan, some 35 miles north of Lang Yard. Crews assigned there would have to report there. The proposed change was not forbidden by, and would not have violated, the parties' collective-bargaining agreement. The union filed a 156 notice seeking to amend the agreement to forbid the railroad to make outlying assignments. The issue was not settled by the parties and the union called for mediation. While the Mediation Board proceedings were pending, the railroad posted a bulletin creating the disputed assignment at Trenton. The union threatened a strike, the company sued to restrain the strike, and the union counterclaimed for an injunction relying on the status quo provision of 156. The District Court and the Court of Appeals held for the union, and we affirmed over a dissent by Justice Harlan, joined by Chief Justice Burger. We held that even though Shore did not propose to change any of its agreements, the status quo provision of 156 — "rates of pay, rules, or working conditions shall not be altered" pending exhaustion of the required procedure — forbade any change by Shore in the "objective working conditions" then We noted that had it been *506 the practice to make outlying work assignments, the company would have been within its rights to make the Trenton assignment; but the prior practice, the objective working condition, was to have crews report for work and come back to Lang Yard. That working condition could not be changed pending resolution of the dispute without violating the status quo provision of 156 even though there was nothing in the agreement between the parties to prevent outlying assignments. Shore in our view, does not control these cases. In the first place, our conclusion in that case that the status quo provision required adherence not only to working conditions contained in express or implied agreements between the railroad and its union but also to conditions "objectively" in existence when the union's notice was served, and that otherwise could be changed without violating any agreement, extended the relevant language of 156 to its outer limits, and we should proceed with care before applying that decision to the facts of these cases.[15] Second, reporting at Lang Yard, we thought, had been the unquestioned practice for many years, and we considered it reasonable for employees to deem it sufficiently established that it would not be changed without bargaining and compliance with the status quo provisions of the RLA. *507 Third, and more fundamentally, the decision did not involve a proposal by the railroad to terminate its business. Here, it may be said that the working condition existing prior to the 156 notice was that P&LE was operating a railroad through the agency of its employees, but there was no reason to expect, simply from the railroad's long existence, that it would stay in business, especially in view of its losses, or that rail labor would have a substantial role in the decision to sell or in negotiating the terms of the sale. Whatever else Shore might reach, it did not involve the decision of a carrier to quit the railroad business, sell its assets, and cease to be a railroad employer at all, a decision that we think should have been accorded more legal significance than it received in the courts below. Our cases indicate as much. In Textile an employer closed its textile mill when a union won a representation election. The National Labor Relations Board concluded that this action was an unfair labor practice under 8(a)(1) and (3) of the National Labor Relations Act (NLRA). The Court of Appeals disagreed, holding that the complete or partial liquidation of an employer's business even though motivated by antiunion animus was not an unfair practice. We affirmed in part,[16] ruling that insofar as the NLRA is concerned, an employer "has an absolute right to terminate his entire business for any reason he pleases." Whatever may be the limits of 8(a)(1), we said, an employer's decision to terminate its business is one of those decisions "so peculiarly matters of management prerogative that they would never constitute violations" of that section. Neither would ceasing business and refusing to bargain about it violate 8(a)(3) or 8(a)(5) even if done with antiunion animus. "A proposition that a single businessman cannot choose to go out of business if he wants to would represent *508 such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Relations Act." We found neither.[17] *509 Although Darlington arose under the NLRA, we are convinced that we should be guided by the admonition in that case that the decision to close down a business entirely is so much a management prerogative that only an unmistakable expression of congressional intent will suffice to require the employer to postpone a sale of its assets pending the fulfillment of any duty it may have to bargain over the subject matter of union notices such as were served in this litigation. Absent statutory direction to the contrary, the decision of a railroad employer to go out of business and consequently to reduce to zero the number of available jobs is not a change in the conditions of employment forbidden by the status quo provision of 156. In these cases, P&LE concluded that it must sell its assets, and its agreement to sell to Railco, if implemented, would have removed it from the railroad business; no longer would it be a railroad employer. No longer would it need the services of members of the rail unions. The RLEA concedes that had the collective-bargaining agreements expressly waived bargaining concerning sale of P&LE's assets, the unions' 156 notices to change the agreements could not trump the terms of the agreements and could not delay the sale. Brief for Respondent RLEA 44. We think the same result follows where the agreement is silent on the matter and the railroad employer has proceeded in accordance with the ICA. In these circumstances, there is little or no basis for the unions to expect that a 156 notice would be effective to delay the company's departure from the railroad business. Congress clearly requires that sales transactions like P&LE's proposal must satisfy the requirements of the ICA, but we find nothing in the RLA to prevent the immediate consummation of P&LE's contract to sell. When the ICC approved the sale by permitting the Ex Parte 392 exemption to become effective, P&LE was free to close the transaction and should not have been enjoined from doing so. *510 This construction of the RLA also responds to our obligation to avoid conflicts between two statutory regimes, namely, the RLA and ICA, that in some respects overlap. As the Court has said, we "are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." We should read federal statutes "to give effect to each if we can do so while preserving their sense and purpose." ; see also United We act accordingly in this litigation. Congress has exercised its Commerce Clause authority to regulate rail transportation for over a century. See Act to regulate commerce of 1887 (the ICA), ch. 104, In doing so, Congress has assigned to the ICC plenary authority over rail transactions, ranging from line extensions, consolidations, and abandonments, to acquisitions. In particular, the ICA in 49 U.S. C. 10901(a) permits noncarriers to acquire a rail line only if the ICC determines that "the present or future public convenience and necessity require or permit" the rail acquisition and operation. The ICC may approve certification on satisfaction of various conditions. Specifically, it has authority to impose labor protection provisions though it is not obligated to do so. 10901(e). Acting pursuant to 10505, the ICC, in its Ex Parte 392 exemption proceedings, declared all noncarrier acquisitions presumptively exempt from 10901 regulation. Such transactions would be deemed approved seven days after a notice filed by the acquiring entities. 49 CFR 1150.32(b) And absent a showing of exceptional circumstances, which rail labor was entitled to demonstrate, labor protection provisions would not be imposed. The Ex Parte 392 procedures, and the ICA, 10505 exemption authority generally, like amendments to ICA in the last two *511 decades, see, e. g., the Railroad Revitalization and Regulatory Reform Act of 1976, Stat. 31; the Staggers Rail Act of 1980, Stat. 1895, aimed at reversing the rail industry's decline through deregulatory efforts, above all by streamlining procedures to effectuate economically efficient transactions. Here P&LE agreed to sell its assets to Railco. The transaction was presented to the ICC and an Ex Parte 392 exemption was requested. The ICC rejected the unions' applications to stay or reject the exemption, which became effective seven days after it was requested. The unions then successfully sought an injunction delaying the closing of the transaction based on their 156 notices. The Court of Appeals several times noted the tension between the two regimes, but concluded that the provisions of the RLA left no room for a construction easing those tensions. This was the case even though the injunction that was affirmed would likely result in cancellation of P&LE's sale and the frustration of Congress' intent through ICA amendments to deregulate the rail and air industries generally and more specifically to assist small rail lines with financial problems. We disagree with that conclusion, for as we have said, we are confident that the RLA is reasonably subject to a construction that would, at least to a degree, harmonize the two statutes.[18] The injunction, which effectively prevented the sale from going forward, should not have been granted. *512 C Our holding in these cases, which rests on our construction of the RLA and not on the pre-emptive force of the ICA, is that petitioner was not obligated to serve its own 156 notice on the unions in connection with the proposed sale. We also conclude that the unions' notices did not obligate P&LE to maintain the status quo and postpone the sale beyond the time the sale was approved by the Commission and was scheduled to be consummated. We do not hold, however, that P&LE had no duty at all to bargain in response to the unions' 156 motions. The courts below held, and RLEA agrees, that P&LE's decision to sell, as such, was not a bargainable subject. The disputed issue is whether P&LE was required to bargain about the effects that the sale would or might have upon its employees. P&LE, in our view, was not entirely free to disregard the unions' demand that it bargain about such effects. When the unions' notices were served, however, the terms of P&LE's agreement with Railco were more or less settled, and P&LE's decision to sell on those terms had been made. To the extent that the unions' demands could be satisfied only by the assent of the buyers, they sought to change or dictate the terms of the sale, and in effect challenged the decision to sell itself. At that time, P&LE was under no obligation to bargain about the terms it had already negotiated. To the extent that the unions' proposals could be satisfied by P&LE itself, those matters were bargainable but only until the date for closing the sale arrived, which, of course, could not occur until the Ex Parte 392 exemption became effective.[19] We are therefore constrained to reverse the Court of Appeals in No. 87-1888. *513 III In No. 87-1589, the issue is whether the Court of Appeals was correct in setting aside the injunction against the strike issued on October 8, At that time, the Ex Parte 392 exemption had become effective, and the District Court held that because the ICC had in effect authorized the sale and had ruled that delay would be prejudicial to the parties and the public interests, the NLGA prohibition against issuing injunctions in labor dispute cases must be accommodated to the ICC's decision that the sale of assets should go forward. It was this decision, based on the legal significance of the ICA and its impact on the NLGA, that the Court of Appeals summarily reversed. We agree with that decision. We have held that the NLGA 4 general limitation on district courts' power to issue injunctions in labor disputes must be accommodated to the more specific provisions of the RLA: "[T]he District Court has jurisdiction and power to issue necessary injunctive orders" to enforce compliance with the requirements of the RLA "notwithstanding the provisions of the Norris-LaGuardia Act." Thus, a union may be enjoined from striking when the dispute concerns the interpretation or application of its contract and is therefore subject to compulsory arbitration. "[T]he specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act." The same accommodation of the NLGA to the specific provisions of the NLRA must be made. A union that has agreed to arbitrate contractual disputes and is subject to a no-strike clause may be enjoined from striking despite the NLGA. Boys Markets, Petitioner contends that the NLGA must likewise be accommodated to the procedures mandated by Congress in 49 U.S. C. 10901 specifically the authority of the ICC to impose labor protective provisions, the right of rail *514 labor to seek such provisions from the ICC, and its right to judicial review if dissatisfied. It is urged that the ICA provides a comprehensive scheme for the resolution of labor protection issues arising out of ICC-regulated transactions and that rail labor must take advantage of those procedures rather than strike. We are unpersuaded that this is the case. The prohibition of the NLGA must give way when necessary to enforce a duty specifically imposed by another statute. But no applicable provision has been called to our attention that imposes any duty on rail unions to participate in ICC proceedings and to seek ICC protections with which they must be satisfied. Furthermore, labor protection provisions run against the acquiring railroad rather than the seller. Yet here it is with the seller, P&LE, that the unions wanted to bargain, seeking to ease the adverse consequences of the sale. To that end, the unions served 156 notices, which at least to some extent obligated P&LE to bargain until its transaction was closed. We find nothing in the ICA that relieved P&LE of that duty, nor anything in that Act that empowers the ICC to intrude into the relationship between the selling carrier and its railroad unions. We are thus quite sure that the NLGA forbade an injunction against that strike unless the strike was contrary to the unions' duties under the RLA. As to that issue, the Court of Appeals stated: "We intimate no view as to whether the provisions of the Railway Labor Act are applicable to this dispute so that the district court would be entitled to enjoin the strike while that Act's dispute resolution mechanisms are underway. RLEA's complaint seeking a declaration that the Railway Labor Act is applicable to this dispute is the merits issue before the district court." On remand, the District Court held that the RLA was indeed applicable to the dispute and on that basis issued an injunction against P&LE. It did not, however, ever address the question whether the unions' *515 strike, which occurred after their suit was filed, was enjoinable under the RLA. Neither did the Court of Appeals deal with that issue in affirming the District Court. P&LE perfunctorily asserts in its briefs in this Court that the strike injunction was proper because the unions were obligated to bargain rather than strike after their 156 notices were served. RLEA did not respond to this assertion. With the case in this position, we shall not pursue the issue. Instead, we vacate the judgment of the Court of Appeals, and leave the matter, if it is a live issue, to be dealt with on remand. IV The judgment of the Court of Appeals in No. 87-1888 is reversed and the judgment in No. 87-1589 is vacated, and the cases are remanded for further proceedings consistent with this opinion. So ordered. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in part and dissenting in part. Regulated utilities do not have the same freedom to respond to market pressures that unregulated firms have.[1] They may not raise rates or cut services, for example, without permission from a regulatory agency. Most significantly for these cases, they may neither enter nor leave the market without agency approval. Ignoring this principle, the Court in Part II of its opinion arrives at a result that, while perhaps preferable as a matter of policy, contradicts our previous interpretations of the relevant statute.[2] *516 The railroad industry long has been the subject of governmental regulation.[3] A year after this Court held that individual States were powerless to regulate rail lines extending beyond their boundaries, Wabash, S. L. & P. R. Congress established the Interstate Commerce Commission (ICC) to regulate economic aspects of the rail industry. Interstate Commerce Act, 49 U.S. C. 10101 et seq. (1982 ed. and Supp. V). Regulation of employment relationships within the rail industry followed,[4] and in 1926, Congress enacted the Railway Labor Act (RLA), 45 U.S. C. 151 et seq. The intervening six decades were marked by relatively peaceful coexistence between the two statutes. During the course of the employment relationship, the RLA provided the means for resolving disputes. See ante, at 496, n. 4; Consolidated Rail Corporation v. Railway Labor Executives' Assn., ante, at 302-304. If a railroad sought to end that relationship by sale, consolidation, or abandonment, the ICC routinely conditioned approval on the railroad's acceptance of either job protection or some form of severance pay for employees who would be affected by the change. See United[5] Cf. ante, at 498. *517 This symbiosis ended in 1985, when the ICC announced that it no longer would impose labor protective conditions on sales of short-line railroads unless exceptional circumstances were shown. Ex Parte No. 392 (Sub. No. 1), Class Exemption for the Acquisition and Operation of Rail s Under 49 U.S. C. 10901, 1 I. C. C. 2d 810, 815 (1985), review denied sub nom. Illinois Commerce ; see ante, at 498-501. Suddenly it became important for railroad unions to obtain such labor protections through collective bargaining. Unlike other employment contracts, however, rail labor agreements are altered not by periodic renegotiation but by notification, pursuant to 6 of the RLA, 45 U.S. C. 156, of a desire to change terms in the agreements. See Tr. of Oral Arg. 66-67. Thus it is not surprising that the unions in this litigation did not seek labor protective provisions until — just 18 months after the ICC abdicated its traditional protective role — plans to sell the railroad surfaced.[6] There is no disagreement that labor protective provisions related to the effects of an abandonment or sale may be the subject of collective bargaining. It follows, I believe, that when railway labor unions request the inclusion of such provisions *518 in their collective-bargaining agreements by proper statutory notice, see ante, at 496-497, and n. 5, the employer must maintain the status quo during the statutorily mandated negotiating process or risk a strike as a consequence of its breach of that duty. See 2 First, Seventh of the RLA, 45 U.S. C. 152 First, Seventh. The Court admits the force of this proposition and acknowledges that an employer has some duty to bargain when a sale is announced. Ante, at 504, 512. Nevertheless, it indicates that this particular dispute did not obligate the railroad to preserve the status quo, for the Court would prohibit any bargaining that "in effect challenged the decision to sell," and would allow negotiations to cease as soon as the sale is closed. Ante, at 512.[7] This diminution of the employer's duty contravenes two of our decisions interpreting the RLA. In Railroad a railroad had decided, with the approval of state regulatory commissions, to abandon a large number of its local stations and thus remove several hundred station attendants from the payroll. This Court held that because the RLA "command[s] that employees as well as railroads exert every reasonable effort to settle all disputes `concerning rates of pay, rules, and working conditions,' " the union had a right to strike to prevent the railroad from implementing the partial abandonment without bargaining over effects. (quoting 2 First of the RLA, 45 U.S. C. 152 First). The Court continued: *519 "It would stretch credulity too far to say that the Railway Labor Act, designed to protect railroad workers, was somehow violated by the union acting precisely in accordance with that Act's purpose to obtain stability and permanence in employment for workers. There is no express provision of law, and certainly we can infer none from the Interstate Commerce Act, making it unlawful for unions to want to discuss with railroads actions that may vitally and adversely affect the security, seniority and stability of railroad jobs." 362 U.S., -340. Telegraphers thus holds that if management decides to abandon a significant part of a railroad's business, the impact of that decision on employees' job security is a proper subject for bargaining under the RLA. Detroit & Toledo Shore R. concerned a railroad's proposal to make new work assignments, a change neither authorized nor prohibited by the collective-bargaining agreement. The Court held that once the union had served notice of its desire to bargain, the railroad was obligated to maintain the status quo until completion of the RLA's " `purposely long and drawn out' " bargaining process. ). It further rejected the railroad's argument that the "status quo" encompassed only working conditions expressed in an agreement between the parties: "[T]he language of 6 simply does not say what the railroad would have it say. Instead, the section speaks plainly of `rates of pay, rules, or working conditions' without any limitation to those obligations already embodied in collective agreements. More important, we are persuaded that the railroad's interpretation of this section is sharply at variance with the overall design and purpose of the Railway Labor Act." *520 The Court therefore construed "status quo" to mean "those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute." Today the Court proffers three reasons why Shore does not control these cases. First, it asserts that the Shore holding that "status quo" includes "conditions `objectively' in existence when the union's notice was served" stretched the language of the statute "to its outer limits," ante, at 506. I am not at all sure that is true; even if it is, the holding is unambiguous and has the force of law. Second, the Court suggests that the fact that the work assignment changed in Shore had been in effect for many years justified an expectation "that it would not be changed without bargaining and compliance with the status quo provisions of the RLA." Ante, at 506. This effectively restates Justice Harlan's argument in dissent that while not limited to the terms of written agreements, the status quo obligation is limited to a change in settled practice. See Shore -160. The Court's emphasis on those dissenting remarks avails it nothing, because the instant controversy also arose out of a change in established procedure. By either a subjective or objective measure, therefore, it is reasonable to conclude that these employees' jobs are among the "working conditions" that must be preserved throughout the bargaining process. Third, and most importantly, the Court points out that in contrast with these cases, the railroad in Shore had not proposed "to quit the railroad business, sell its assets, and cease to be a railroad employer at all," ante, at 507. The simple reply is that, in spite of claims of " `managerial prerogative' " much like those advanced here,[8] the Court in Telegraphers *521 held that the effects of a railroad's decision to terminate a part of its business constituted a proper subject of bargaining. There is no relevant difference between the partial abandonment in Telegraphers and the transfer of ownership proposed in these cases: in both, rail service would continue as before, but many employees would lose their jobs. Management's motive in Telegraphers, to cut costs by eliminating a large number of dispensable jobs, was of course perfectly reasonable. Thus when the Court held that the RLA required the railroad to bargain over the effects of the change, Justice Clark wrote: "Today the Court tells the railroad that it must bargain with the union or suffer a strike. The latter would be the death knell of the railroad. Hence, for all practical purposes, the Court is telling the railroad that it must secure the union's approval before severing the hundreds of surplus employees now carried on its payroll. Everyone knows what the answer of the union will be. It is like the suitor who, when seeking the hand of a young lady, was told by her to `go to father.' But, as the parody goes, `She knew that he knew that her father was dead; she knew that he knew what a life he had led; and she knew that he knew what she meant when she said "go to father." ' " -344 Had the sale in these cases proceeded, the railroad would have operated the same service with a work force of 250 as compared to 750 employees. Ante, at 495. The economic benefits of that reduction are as obvious as those that would have been achieved by closing obsolete stations on the railroad system in Telegraphers. It is just as obvious, I believe, that *522 the RLA again commands bargaining. As Judge Becker noted in his opinion for the Court of Appeals: "We are fully aware of the unfortunate ramifications and irony of our decision. A bargaining order, and a status quo injunction, designed to foster conciliation, promote labor peace, and ultimately keep the rails running, may ultimately have the perverse effect of destroying the only chance P & LE has for survival and perhaps even the very jobs that the unions are now trying to protect. Although we are not happy with this result, we feel constrained to reach it, because the Supreme Court has appropriately admonished the judiciary not to apply its own brand of `common sense' in the face of a contrary statutory mandate." To evade the natural result of adherence to Shore and Telegraphers, the Court relies on two later opinions declaring that "an employer has the absolute right to terminate his entire business for any reason he pleases," Textile and that the consequences of a partial closure are not a mandatory subject of bargaining, First National Maintenance See ante, at 507-509, and n. 17. But those opinions interpreted the strictures that the National Labor Relations Act places on an unregulated industry. As we noted in First National Maintenance Corp., that is a situation far different from the RLA's governance of a regulated industry.[9] *523 At issue today is the RLA's regulation of a railroad's freedom to leave the market. Perhaps the RLA's restrictions on that freedom, as interpreted in Telegraphers and Shore do not best serve national transportation interests. But since Congress has not overruled those interpretations, it is, as Judge Becker observed, inappropriate for judges to undertake to fill the perceived policy void. For these reasons, I would affirm the judgment of the Court of Appeals in No. 87-1888.

Justice Blackmun

dissenting

Zobrest v. Catalina Foothills School Dist.

https://www.courtlistener.com/opinion/112887/zobrest-v-catalina-foothills-school-dist/

https://www.courtlistener.com/api/rest/v3/clusters/112887/

1992-098

Today, the Court unnecessarily addresses an important constitutional issue, disregarding longstanding principles of constitutional adjudication. In so doing, the Court holds that placement in a parochial school classroom of a public employee whose duty consists of relaying religious messages does not violate the Establishment Clause of the First Amendment. I disagree both with the Court's decision to reach this question and with its disposition on the merits. I therefore dissent. I "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501 (1985); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). This is a "fundamental rule of judicial restraint," Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 157 (1984), which has received the sanction of time and experience. It has been described as a "corollary" to the Article III case or controversy requirement, see Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 570 (1947), and is grounded in basic *15 principles regarding the institution of judicial review and this Court's proper role in our federal system, ibid. Respondent School District makes two arguments that could provide grounds for affirmance, rendering consideration of the constitutional question unnecessary. First, respondent maintains that the Individuals with Disabilities Education Act (IDEA), 20 U.S. C. § 1400 et seq., does not require it to furnish James Zobrest with an interpreter at any private school so long as special education services are made available at a public school. The United States endorses this interpretation of the statute, explaining that "the IDEA itself does not establish an individual entitlement to services for students placed in private schools at their parents' option." Brief for United States as Amicus Curiae 13. And several courts have reached the same conclusion. See, e. g., Goodall v. Stafford County School Bd., 930 F.2d 363 (CA4), cert. denied, 502 U.S. 864 (1991); McNair v. Cardimone, 676 F. Supp. 1361 (SD Ohio 1987), aff'd sub nom. McNair v. Oak Hills Local School Dist., 872 F.2d 153 (CA6 1989); Work v. McKenzie, 661 F. Supp. 225 (DC 1987). Second, respondent contends that 34 CFR § 76.532(a)(1) (1992), a regulation promulgated under the IDEA, which forbids the use of federal funds to pay for "[r]eligious worship, instruction, or proselytization," prohibits provision of a signlanguage interpreter at a sectarian school. The United States asserts that this regulation does not preclude the relief petitioners seek, Brief for United States as Amicus Curiae 23, but at least one federal court has concluded otherwise. See Goodall, supra. This Court could easily refrain from deciding the constitutional claim by vacating and remanding the case for consideration of the statutory and regulatory issues. Indeed, the majority's decision does not eliminate the need to resolve these remaining questions. For, regardless of the Court's views on the Establishment Clause, petitioners will not obtain what they seek if the federal statute *16 does not require or the federal regulations prohibit provision of a sign-language interpreter in a sectarian school.[1] The majority does not deny the existence of these alternative grounds, nor does it dispute the venerable principle that constitutional questions should be avoided when there are nonconstitutional grounds for a decision in the case. Instead, in its zeal to address the constitutional question, the majority casts aside this "time-honored canon of constitutional adjudication," Spector Motor Service, 323 U. S., at 105, with the cursory observation that "the prudential rule of avoiding constitutional questions has no application" in light of the "posture" of this case, ante, at 8. Because the parties chose not to litigate the federal statutory issues in the District Court and in the Court of Appeals, the majority blithely proceeds to the merits of their constitutional claim. But the majority's statements are a non sequitur. From the rule against deciding issues not raised or considered below, it does not follow that the Court should consider constitutional issues needlessly. The obligation to avoid unnecessary adjudication of constitutional questions does not depend upon the parties' litigation strategy, but rather is a "self-imposed limitation on the exercise of this Court's jurisdiction [that] has an importance to the institution that transcends the significance of particular controversies." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 294 (1982). It is a rule whose aim is to protect not parties but the law and the adjudicatory process. Indeed, just a few days ago, we expressed concern that "litigants, by agreeing on the legal issue presented, [could] extract the opinion of a court *17 on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory." United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 447 (1993). See United States v. CIO, 335 U.S. 106, 126 (1948) (Frankfurter, J., concurring). That the federal statutory and regulatory issues have not been properly briefed or argued does not justify the Court's decision to reach the constitutional claim. The very posture of this case should have alerted the courts that the parties were seeking what amounts to an advisory opinion. After the Arizona attorney general concluded that provision of a sign-language interpreter would violate the Federal and State Constitutions, the parties bypassed the federal statutes and regulations and proceeded directly to litigate the constitutional issue. Under such circumstances, the weighty nonconstitutional questions that were left unresolved are hardly to be described as "buried in the record." Ante, at 8. When federal- and state-law questions similarly remained open in Wheeler v. Barrera, 417 U.S. 402 (1974), this Court refused to pass upon the scope or constitutionality of a federal statute that might have required publicly employed teachers to provide remedial instruction on the premises of sectarian schools. Prudence counsels that the Court follow a similar practice here by vacating and remanding this case for consideration of the nonconstitutional questions, rather than proceeding directly to the merits of the constitutional claim. See Youakim v. Miller, 425 U.S. 231 (1976) (vacating and remanding for consideration of statutory issues not presented to or considered by lower court); Escambia County v. McMillan, 466 U.S. 48, 51-52 (1984) (vacating and remanding for lower court to consider statutory issue parties had not briefed and Court of Appeals had not passed upon); Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 157-158 (1983) (vacating and remanding for consideration of statutory question). *18 II Despite my disagreement with the majority's decision to reach the constitutional question, its arguments on the merits deserve a response. Until now, the Court never has authorized a public employee to participate directly in religious indoctrination. Yet that is the consequence of today's decision. Let us be clear about exactly what is going on here. The parties have stipulated to the following facts. James Zobrest requested the State to supply him with a sign-language interpreter at Salpointe High School, a private Roman Catholic school operated by the Carmelite Order of the Catholic Church. App. 90. Salpointe is a "pervasively religious" institution where "[t]he two functions of secular education and advancement of religious values or beliefs are inextricably intertwined." Id., at 92. Salpointe's overriding "objective" is to "instill a sense of Christian values." Id., at 90. Its "distinguishing purpose" is "the inculcation in its students of the faith and morals of the Roman Catholic Church." Religion is a required subject at Salpointe, and Catholic students are "strongly encouraged" to attend daily Mass each morning. Ibid. Salpointe's teachers must sign a Faculty Employment Agreement which requires them to promote the relationship among the religious, the academic, and the extracurricular.[2] They are encouraged to do so by "assist[ing] students in experiencing how the presence of God is manifest in nature, human history, in the struggles for economic and political justice, and other secular areas of the curriculum." Id., at 92. The agreement also sets forth detailed rules of *19 conduct teachers must follow in order to advance the school's Christian mission.[3] At Salpointe, where the secular and the sectarian are "inextricably intertwined," governmental assistance to the educational function of the school necessarily entails governmental participation in the school's inculcation of religion. A state-employed sign-language interpreter would be required to communicate the material covered in religion class, the nominally secular subjects that are taught from a religious perspective, and the daily Masses at which Salpointe encourages attendance for Catholic students. In an environment so pervaded by discussions of the divine, the interpreter's every gesture would be infused with religious significance. Indeed, petitioners willingly concede this point: "That the interpreter conveys religious messages is a given in the case." Brief for Petitioners 22. By this concession, petitioners would seem to surrender their constitutional claim. The majority attempts to elude the impact of the record by offering three reasons why this sort of aid to petitioners survives Establishment Clause scrutiny. First, the majority observes that provision of a sign-language interpreter *20 occurs as "part of a general government program that distributes benefits neutrally to any child qualifying as `disabled' under the IDEA, without regard to the `sectariannonsectarian, or public-nonpublic nature' of the school the child attends." Ante, at 10. Second, the majority finds significant the fact that aid is provided to pupils and their parents, rather than directly to sectarian schools. As a result, "`[a]ny aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.'" Ante, at 9, quoting Witters v. Washington Dept. of Services for Blind, 474 U.S. 481, 487 (1986). And, finally, the majority opines that "the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor." Ante, at 13. But the majority's arguments are unavailing. As to the first two, even a general welfare program may have specific applications that are constitutionally forbidden under the Establishment Clause. See Bowen v. Kendrick, 487 U.S. 589 (1988) (holding that Adolescent Family Life Act on its face did not violate the Establishment Clause, but remanding for examination of the constitutionality of particular applications). For example, a general program granting remedial assistance to disadvantaged schoolchildren attending public and private, secular and sectarian schools alike would clearly offend the Establishment Clause insofar as it authorized the provision of teachers. See Aguilar v. Felton, 473 U.S. 402, 410 (1985); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385 (1985); Meek v. Pittenger, 421 U.S. 349, 371 (1975). Such a program would not be saved simply because it supplied teachers to secular as well as sectarian schools. Nor would the fact that teachers were furnished to pupils and their parents, rather than directly to sectarian schools, immunize such a program from Establishment Clause scrutiny. See Witters, 474 U. S., at 487 ("Aid may have [unconstitutional] effect even though it takes the form of aid to students *21 or parents"); Wolman v. Walter, 433 U.S. 229, 250 (1977) (it would "exalt form over substance if this distinction [between equipment loaned to the pupil or his parent and equipment loaned directly to the school] were found to justify a . . . different" result); Ball, 473 U. S., at 395 (rejecting "fiction that a . . .program could be saved by masking it as aid to individual students"). The majority's decision must turn, then, upon the distinction between a teacher and a signlanguage interpreter. "Although Establishment Clause jurisprudence is characterized by few absolutes," at a minimum "the Clause does absolutely prohibit government-financed or governmentsponsored indoctrination into the beliefs of a particular religious faith." Id., at 385. See Bowen v. Kendrick, 487 U. S., at 623 (O'Connor, J., concurring) ("[A]ny use of public funds to promote religious doctrines violates the Establishment Clause") (emphasis in original); Meek, 421 U. S., at 371 ("`The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion,'" quoting Lemon v. Kurtzman, 403 U.S. 602, 619 (1971)); Levitt v. Committee for Public Ed. & Religious Liberty, 413 U.S. 472, 480 (1973) ("[T]he State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination"). In keeping with this restriction, our cases consistently have rejected the provision by government of any resource capable of advancing a school's religious mission. Although the Court generally has permitted the provision of "secular and nonideological services unrelated to the primary, religion-oriented educational function of the sectarian school," Meek, 421 U. S., at 364, it has always proscribed the provision of benefits that afford even the "opportunity for the transmission of sectarian views," Wolman, 433 U. S., at 244. Thus, the Court has upheld the use of public school buses to transport children to and from school, Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), while striking down the *22 employment of publicly funded buses for field trips controlled by parochial school teachers, Wolman, 433 U. S., at 254. Similarly, the Court has permitted the provision of secular textbooks whose content is immutable and can be ascertained in advance, Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236 (1968), while prohibiting the provision of any instructional materials or equipment that could be used to convey a religious message, such as slide projectors, tape recorders, record players, and the like, Wolman, 433 U. S., at 249. State-paid speech and hearing therapists have been allowed to administer diagnostic testing on the premises of parochial schools, id., at 241-242, whereas state-paid remedial teachers and counselors have not been authorized to offer their services because of the risk that they may inculcate religious beliefs, Meek, 421 U. S., at 371. These distinctions perhaps are somewhat fine, but "`lines must be drawn.'" Ball, 473 U. S., at 398 (citation omitted). And our cases make clear that government crosses the boundary when it furnishes the medium for communication of a religious message. If petitioners receive the relief they seek, it is beyond question that a state-employed signlanguage interpreter would serve as the conduit for James' religious education, thereby assisting Salpointe in its mission of religious indoctrination. But the Establishment Clause is violated when a sectarian school enlists "the machinery of the State to enforce a religious orthodoxy." Lee v. Weisman, 505 U.S. 577, 592 (1992). Witters, supra, and Mueller v. Allen, 463 U.S. 388 (1983), are not to the contrary. Those cases dealt with the payment of cash or a tax deduction, where governmental involvement ended with the disbursement of funds or lessening of tax. This case, on the other hand, involves ongoing, daily, and intimate governmental participation in the teaching and propagation of religious doctrine. When government dispenses public funds to individuals who employ them to finance private choices, it is difficult to argue that government *23 is actually endorsing religion. But the graphic symbol of the concert of church and state that results when a public employee or instrumentality mouths a religious message is likely to "enlis[t]—at least in the eyes of impressionable youngsters—the powers of government to the support of the religious denomination operating the school." Ball, 473 U. S., at 385. And the union of church and state in pursuit of a common enterprise is likely to place the imprimatur of governmental approval upon the favored religion, conveying a message of exclusion to all those who do not adhere to its tenets. Moreover, this distinction between the provision of funds and the provision of a human being is not merely one of form. It goes to the heart of the principles animating the Establishment Clause. As amicus Council on Religious Freedom points out, the provision of a state-paid sign-language interpreter may pose serious problems for the church as well as for the state. Many sectarian schools impose religiously based rules of conduct, as Salpointe has in this case. A traditional Hindu school would be likely to instruct its students and staff to dress modestly, avoiding any display of their bodies. And an orthodox Jewish yeshiva might well forbid all but kosher food upon its premises. To require public employees to obey such rules would impermissibly threaten individual liberty, but to fail to do so might endanger religious autonomy. For such reasons, it long has been feared that "a union of government and religion tends to destroy government and to degrade religion." Engel v. Vitale, 370 U.S. 421, 431 (1962). The Establishment Clause was designed to avert exactly this sort of conflict. III The Establishment Clause "rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." Illinois ex rel. McCollum v. Board of Ed. of *24 School Dist. No. 71, Champaign Cty., 333 U.S. 203, 212 (1948). To this end, our cases have strived to "chart a course that preserve[s] the autonomy and freedom of religious bodies while avoiding any semblance of established religion." Walz v. Tax Comm'n of New York City, 397 U.S. 664, 672 (1970). I would not stray, as the Court does today, from the course set by nearly five decades of Establishment Clause jurisprudence. Accordingly, I dissent.

Today, the Court unnecessarily addresses an important constitutional issue, disregarding longstanding principles of constitutional adjudication. In so doing, the Court holds that placement in a parochial school classroom of a public employee whose duty consists of relaying religious messages does not violate the Establishment Clause of the First Amendment. I disagree both with the Court's decision to reach this question and with its disposition on the merits. I therefore dissent. I "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality unless such adjudication is unavoidable." Spector Motor Service, See ; ; Liverpool, New York & Philadelphia S. S. This is a "fundamental rule of judicial restraint," Three Affiliated Tribes of Fort Berthold which has received the sanction of time and experience. It has been described as a "corollary" to the Article III case or controversy requirement, see Rescue and is grounded in basic *15 principles regarding the institution of judicial review and this Court's proper role in our federal system, Respondent School District makes two arguments that could provide grounds for affirmance, rendering consideration of the constitutional question unnecessary. First, respondent maintains that the Individuals with Disabilities Education Act (IDEA), 20 U.S. C. 1400 et seq., does not require it to furnish James Zobrest with an interpreter at any private school so long as special education services are made available at a public school. The United States endorses this interpretation of the statute, explaining that "the IDEA itself does not establish an individual entitlement to services for students placed in private schools at their parents' option." Brief for United States as Amicus Curiae 13. And several courts have reached the same conclusion. See, e. g., (CA4), cert. denied, ; aff'd sub nom. ; Second, respondent contends that 34 CFR 76.532(a)(1) a regulation promulgated under the IDEA, which forbids the use of federal funds to pay for "[r]eligious worship, instruction, or proselytization," prohibits provision of a signlanguage interpreter at a sectarian school. The United States asserts that this regulation does not preclude the relief petitioners seek, Brief for United States as Amicus Curiae 23, but at least one federal court has concluded otherwise. See This Court could easily refrain from deciding the constitutional claim by vacating and remanding the case for consideration of the statutory and regulatory issues. Indeed, the majority's decision does not eliminate the need to resolve these remaining questions. For, regardless of the Court's views on the Establishment Clause, petitioners will not obtain what they seek if the federal statute *16 does not require or the federal regulations prohibit provision of a sign-language interpreter in a sectarian school.[1] The majority does not deny the existence of these alternative grounds, nor does it dispute the venerable principle that constitutional questions should be avoided when there are nonconstitutional grounds for a decision in the case. Instead, in its zeal to address the constitutional question, the majority casts aside this "time-honored canon of constitutional adjudication," Spector Motor Service, 323 U. S., at with the cursory observation that "the prudential rule of avoiding constitutional questions has no application" in light of the "posture" of this case, ante, at 8. Because the parties chose not to litigate the federal statutory issues in the District Court and in the Court of Appeals, the majority blithely proceeds to the merits of their constitutional claim. But the majority's statements are a non sequitur. From the rule against deciding issues not raised or considered below, it does not follow that the Court should consider constitutional issues needlessly. The obligation to avoid unnecessary adjudication of constitutional questions does not depend upon the parties' litigation strategy, but rather is a "self-imposed limitation on the exercise of this Court's jurisdiction [that] has an importance to the institution that transcends the significance of particular controversies." City of It is a rule whose aim is to protect not parties but the law and the adjudicatory process. Indeed, just a few days ago, we expressed concern that "litigants, by agreeing on the legal issue presented, [could] extract the opinion of a court *17 on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory." United States Nat. Bank of 508 U.S. 4, See United That the federal statutory and regulatory issues have not been properly briefed or argued does not justify the Court's decision to reach the constitutional claim. The very posture of this case should have alerted the courts that the parties were seeking what amounts to an advisory opinion. After the Arizona attorney general concluded that provision of a sign-language interpreter would violate the Federal and State Constitutions, the parties bypassed the federal statutes and regulations and proceeded directly to litigate the constitutional issue. Under such circumstances, the weighty nonconstitutional questions that were left unresolved are hardly to be described as "buried in the record." Ante, at 8. When federal- and state-law questions similarly remained open in this Court refused to pass upon the scope or constitutionality of a federal statute that might have required publicly employed teachers to provide remedial instruction on the premises of sectarian schools. Prudence counsels that the Court follow a similar practice here by vacating and remanding this case for consideration of the nonconstitutional questions, rather than proceeding directly to the merits of the constitutional claim. See ; Escambia ; Edward J. DeBartolo -158 *18 II Despite my disagreement with the majority's decision to reach the constitutional question, its arguments on the merits deserve a response. Until now, the Court never has authorized a public employee to participate directly in religious indoctrination. Yet that is the consequence of today's decision. Let us be clear about exactly what is going on here. The parties have stipulated to the following facts. James Zobrest requested the State to supply him with a sign-language interpreter at Salpointe High School, a private Roman Catholic school operated by the Carmelite Order of the Catholic Church. App. 90. Salpointe is a "pervasively religious" institution where "[t]he two functions of secular education and advancement of religious values or beliefs are inextricably intertwined." Salpointe's overriding "objective" is to "instill a sense of Christian values." Its "distinguishing purpose" is "the inculcation in its students of the faith and morals of the Roman Catholic Church." Religion is a required subject at Salpointe, and Catholic students are "strongly encouraged" to attend daily Mass each morning. Salpointe's teachers must sign a Faculty Employment Agreement which requires them to promote the relationship among the religious, the academic, and the extracurricular.[2] They are encouraged to do so by "assist[ing] students in experiencing how the presence of God is manifest in nature, human history, in the struggles for economic and political justice, and other secular areas of the curriculum." The agreement also sets forth detailed rules of *19 conduct teachers must follow in order to advance the school's Christian mission.[3] At Salpointe, where the secular and the sectarian are "inextricably intertwined," governmental assistance to the educational function of the school necessarily entails governmental participation in the school's inculcation of religion. A state-employed sign-language interpreter would be required to communicate the material covered in religion class, the nominally secular subjects that are taught from a religious perspective, and the daily Masses at which Salpointe encourages attendance for Catholic students. In an environment so pervaded by discussions of the divine, the interpreter's every gesture would be infused with religious significance. Indeed, petitioners willingly concede this point: "That the interpreter conveys religious messages is a given in the case." Brief for Petitioners 22. By this concession, petitioners would seem to surrender their constitutional claim. The majority attempts to elude the impact of the record by offering three reasons why this sort of aid to petitioners survives Establishment Clause scrutiny. First, the majority observes that provision of a sign-language interpreter *20 occurs as "part of a general government program that distributes benefits neutrally to any child qualifying as `disabled' under the IDEA, without regard to the `sectariannonsectarian, or public-nonpublic nature' of the school the child attends." Ante, at 10. Second, the majority finds significant the fact that aid is provided to pupils and their parents, rather than directly to sectarian schools. As a result, "`[a]ny aid that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.'" Ante, at 9, quoting And, finally, the majority opines that "the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor." Ante, at 13. But the majority's arguments are unavailing. As to the first two, even a general welfare program may have specific applications that are constitutionally forbidden under the Establishment Clause. See U.S. 589 For example, a general program granting remedial assistance to disadvantaged schoolchildren attending public and private, secular and sectarian schools alike would clearly offend the Establishment Clause insofar as it authorized the provision of teachers. See ; School Dist. of Grand ; Such a program would not be saved simply because it supplied teachers to secular as well as sectarian schools. Nor would the fact that teachers were furnished to pupils and their parents, rather than directly to sectarian schools, immunize such a program from Establishment Clause scrutiny. See 474 U. S., at ; ; 473 U. S., at 5 The majority's decision must turn, then, upon the distinction between a teacher and a signlanguage interpreter. "Although Establishment Clause jurisprudence is characterized by few absolutes," at a minimum "the Clause does absolutely prohibit government-financed or governmentsponsored indoctrination into the beliefs of a particular religious faith." at See U. S., at 623 ("[A]ny use of public funds to promote religious doctrines violates the Establishment Clause") (emphasis in original); 421 U. S., at ); In keeping with this restriction, our cases consistently have rejected the provision by government of any resource capable of advancing a school's religious mission. Although the Court generally has permitted the provision of "secular and nonideological services unrelated to the primary, religion-oriented educational function of the sectarian school," it has always proscribed the provision of benefits that afford even the "opportunity for the transmission of sectarian views," Thus, the Court has upheld the use of public school buses to transport children to and from school, while striking down the *22 employment of publicly funded buses for field trips controlled by parochial school teachers, Similarly, the Court has permitted the provision of secular textbooks whose content is immutable and can be ascertained in advance, Board of Ed. of Central School Dist. No. 2 U.S. 236 while prohibiting the provision of any instructional materials or equipment that could be used to convey a religious message, such as slide projectors, tape recorders, record players, and the like, State-paid speech and hearing therapists have been allowed to administer diagnostic testing on the premises of parochial schools, whereas state-paid remedial teachers and counselors have not been authorized to offer their services because of the risk that they may inculcate religious beliefs, 421 U. S., at These distinctions perhaps are somewhat fine, but "`lines must be drawn.'" 473 U. S., at 8 And our cases make clear that government crosses the boundary when it furnishes the medium for communication of a religious message. If petitioners receive the relief they seek, it is beyond question that a state-employed signlanguage interpreter would serve as the conduit for James' religious education, thereby assisting Salpointe in its mission of religious indoctrination. But the Establishment Clause is violated when a sectarian school enlists "the machinery of the State to enforce a religious orthodoxy." and are not to the contrary. Those cases dealt with the payment of cash or a tax deduction, where governmental involvement ended with the disbursement of funds or lessening of tax. This case, on the other hand, involves ongoing, daily, and intimate governmental participation in the teaching and propagation of religious doctrine. When government dispenses public funds to individuals who employ them to finance private choices, it is difficult to argue that government *23 is actually endorsing religion. But the graphic symbol of the concert of church and state that results when a public employee or instrumentality mouths a religious message is likely to "enlis[t]—at least in the eyes of impressionable youngsters—the powers of government to the support of the religious denomination operating the school." 473 U. S., at And the union of church and state in pursuit of a common enterprise is likely to place the imprimatur of governmental approval upon the favored religion, conveying a message of exclusion to all those who do not adhere to its tenets. Moreover, this distinction between the provision of funds and the provision of a human being is not merely one of form. It goes to the heart of the principles animating the Establishment Clause. As amicus Council on Religious Freedom points out, the provision of a state-paid sign-language interpreter may pose serious problems for the church as well as for the state. Many sectarian schools impose religiously based rules of conduct, as Salpointe has in this case. A traditional Hindu school would be likely to instruct its students and staff to dress modestly, avoiding any display of their bodies. And an orthodox Jewish yeshiva might well forbid all but kosher food upon its premises. To require public employees to obey such rules would impermissibly threaten individual liberty, but to fail to do so might endanger religious autonomy. For such reasons, it long has been feared that "a union of government and religion tends to destroy government and to degrade religion." The Establishment Clause was designed to avert exactly this sort of conflict. III The Establishment Clause "rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." Illinois ex rel. To this end, our cases have strived to "chart a course that preserve[s] the autonomy and freedom of religious bodies while avoiding any semblance of established religion." 7 U.S. 664, I would not stray, as the Court does today, from the course set by nearly five decades of Establishment Clause jurisprudence. Accordingly, I dissent.

Justice Souter

dissenting

Crawford v. Marion County Election Bd.

https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/

https://www.courtlistener.com/api/rest/v3/clusters/145813/

2007-035

Indiana’s “Voter ID Law”1 threatens to impose nontriv- ial burdens on the voting right of tens of thousands of the State’s citizens, see ante, at 14–15 (lead opinion), and a significant percentage of those individuals are likely to be deterred from voting, see ante, at 15–16. The statute is unconstitutional under the balancing standard of Burdick v. Takushi, 504 U.S. 428 (1992): a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–13, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried. I therefore respectfully dissent from the Court’s judgment —————— 1 Senate Enrolled Act No. 483, 2005 Ind. Acts p. 2005. 2 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting sustaining the statute.2 I Voting-rights cases raise two competing interests, the one side being the fundamental right to vote. See Burdick, supra, at 433 (“It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional struc- ture’ ” (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)); see also Purcell v. Gon- zalez, 549 U.S. 1, 3–4 (2006) (per curiam); Dunn v. Blum- stein, 405 U.S. 330, 336 (1972); Reynolds v. Sims, 377 U.S. 533, 561–562 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). The Judiciary is obliged to train a skepti- cal eye on any qualification of that right. See Reynolds, supra, at 562 (“Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged in- fringement of the right of citizens to vote must be carefully and meticulously scrutinized”). As against the unfettered right, however, lies the “[c]ommon sense, as well as constitutional law . . . that government must play an active role in structuring elec- tions; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” Burdick, supra, at 433 (quot- ing Storer v. Brown, 415 U.S. 724, 730 (1974)); see also Burdick, supra, at 433 (“Election laws will invariably impose some burden upon individual voters”). Given the legitimacy of interests on both sides, we have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis: the scrutiny varies with the effect of the regulation at issue. And whatever the claim, the —————— 2 I agree with the lead opinion that the petitioners in No. 07–25 have standing and that we therefore need not determine whether the re- maining petitioners also have standing. See ante, at 5, n. 7. Cite as: 553 U. S. ____ (2008) 3 SOUTER, J., dissenting Court has long made a careful, ground-level appraisal both of the practical burdens on the right to vote and of the State’s reasons for imposing those precise burdens. Thus, in Burdick: “A court considering [such] a challenge . . . must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Four- teenth Amendments that the plaintiff seeks to vindi- cate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plain- tiff’s rights.’ ” 504 U. S., at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). The lead opinion does not disavow these basic principles. See ante, at 6–7 (discussing Burdick); see also ante, at 7 (“However slight [the] burden may appear, . . . it must be justified by relevant and legitimate state interests suffi- ciently weighty to justify the limitation” (internal quota- tion marks omitted)). But I think it does not insist enough on the hard facts that our standard of review demands. II Under Burdick, “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Four- teenth Amendment rights,” 504 U. S., at 434, upon an assessment of the “character and magnitude of the as- serted [threatened] injury,” ibid. (quoting Anderson, su- pra, at 789), and an estimate of the number of voters likely to be affected. A The first set of burdens shown in these cases is the travel costs and fees necessary to get one of the limited variety of federal or state photo identifications needed to 4 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting cast a regular ballot under the Voter ID Law.3 The travel is required for the personal visit to a license branch of the Indiana Bureau of Motor Vehicles (BMV), which is de- manded of anyone applying for a driver’s license or non- driver photo identification. See Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 791 (SD Ind. 2006). The need to travel to a BMV branch will affect voters according to their circumstances, with the average person probably viewing it as nothing more than an inconvenience. Poor, old, and disabled voters who do not drive a car, however, may find the trip prohibitive,4 witness the fact that the —————— 3 Under Indiana’s law, an ID does not qualify as proof of identification unless it “satisfies all [of] the following”: “(1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual’s voter registration record. “(2) The document shows a photograph of the individual to whom the document was issued. “(3) The document includes an expiration date, and the document: “(A) is not expired; or “(B) expired after the date of the most recent general election. “(4) The document was issued by the United States or the state of Indiana.” Ind. Code Ann. §3–5–2–40.5 (West 2006). 4 The State asserts that the elderly and disabled are adequately ac- commodated through their option to cast absentee ballots, and so any burdens on them are irrelevant. See Brief for Respondents in No. 07– 25, p. 41. But as petitioners’ amici AARP and the National Senior Citizens Law Center point out, there are crucial differences between the absentee and regular ballot. Brief for AARP et al. as Amici Curiae 12–16. Voting by absentee ballot leaves an individual without the possibility of receiving assistance from poll workers, and thus increases the likelihood of confusion and error. More seriously, as the Supreme Court of Indiana has recognized, Indiana law “treats absentee voters differently from the way it treats Election Day voters,” in the important sense that “an absentee ballot may not be recounted in situations where clerical error by an election officer rendered it invalid.” Horse- man v. Keller, 841 N.E.2d 164, 171 (2006). The State itself notes that “election officials routinely reject absentee ballots on suspicion of forgery.” Brief for Respondents in No. 07–25, p. 62. The record indi- cates that voters in Indiana are not unaware of these risks. One Cite as: 553 U. S. ____ (2008) 5 SOUTER, J., dissenting BMV has far fewer license branches in each county than there are voting precincts.5 Marion County, for example, has over 900 active voting precincts, see Brief for Respon- dents in No. 07–21, p. 4,6 yet only 12 BMV license branches;7 in Lake County, there are 565 active voting precincts, see n. 6, supra, to match up with only 8 BMV locations;8 and Allen County, with 309 active voting pre- cincts, see ibid., has only 3 BMV license branches.9 The same pattern holds in counties with smaller populations. Brown County has 12 active voter precincts, see ibid., and only one BMV office;10 while there were 18 polling places available in Fayette County’s 2007 municipal primary,11 —————— elderly affiant in the District Court testified: “I don’t trust [the absen- tee] system. . . . Because a lot of soldiers vote like that and their votes wasn’t counted in the last election according to what I read, absentee.” App. 209 (deposition of David Harrison). It is one thing (and a commendable thing) for the State to make absentee voting available to the elderly and disabled; but it is quite another to suggest that, because the more convenient but less reliable absentee ballot is available, the State may freely deprive the elderly and disabled of the option of voting in person. 5 Under Indiana law, county executives must locate a polling place within five miles of the closest boundary of each voting precinct, and, with limited exceptions, no precinct may cover more than 1,200 active voters at the time it is established. See Brief for Respondents in No. 07–21, p. 3 (citing Ind. Code Ann. §§3–11–8–3(b), 3–11–1.5–3). The result is that the number of polling places tends to track the number of voting precincts in a county. In Henry County, for example, there are 42 active precincts, see n. 6, infra, and 42 polling places have been approved for the 2008 elections, see n. 13, infra. 6 See also Count of Active Precincts by County, online at http://www.in.gov/sos/pdfs/Precincts_by_County_and_State_022706.pdf (all Internet materials as visited Apr. 21, 2008, and available in Clerk of Court’s case file). 7 See Marion County License Branches, http://www.in.gov/bmv/ 3134.htm. 8 See Lake County, http://www.in.gov/bmv/3150.htm. 9 See Allen County, http://www.in.gov/bmv/2954.htm. 10 See Brown County, http://www.in.gov/bmv/3302.htm. 11 See http://www.co.fayette.in.us/2007%20polling_locations_munic. 6 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting there was only 1 BMV license branch;12 and Henry County, with 42 polling places approved for 2008 elec- tions,13 has only 1 BMV office. The burden of traveling to a more distant BMV office rather than a conveniently located polling place is proba- bly serious for many of the individuals who lack photo identification.14 They almost certainly will not own cars, see Brief for Current and Former State Secretaries of State as Amici Curiae 11, and public transportation in Indiana is fairly limited. According to a report published by Indiana’s Department of Transportation in August 2007, 21 of Indiana’s 92 counties have no public transpor- tation system at all,15 and as of 2000, nearly 1 in every 10 —————— htm. 12 See Fayette County, http://www.in.gov/bmv/3246.htm. 13 See News Release, Henry County, Indiana, Polling Places Approved for the 2008 Elections, http://www.henryco.net/cm/node/52. 14 The travel burdens might, in the future, be reduced to some extent by Indiana’s commendable “BMV2You” mobile license branch, which will travel across the State for an average of three days a week, and provide BMV services (including ID services). See http:// www.in.gov/bmv/3554.htm. The program does not count in my analy- sis, however, because the program was only recently opened in August 2007, see Indiana BMV Opens License Branch at State Fair, http://www.in.gov/newsroom.htm?detailContent=93_10400.htm, and its long-term service schedule has yet to be determined. 15 Indiana Public Transit: Annual Report 2006, p. 29, http:// www.in.gov/indot/files/INDOT_2006.pdf (hereinafter Annual Report). The 21 counties with no public transportation, according to the study, are: Adams, Blackford, Brown, Carroll, Clay, De Kalb, Gibson, Jennings, Lagrange, Parke, Perry, Posey, Putnam, Rush, Spencer, Steuben, Tipton, Vermillion, Warren, Warrick, and Whitley Counties. See ibid. A Website of the American Public Transportation Association, which compiles public transit information across the States, confirms that each of those 21 counties lacks any public transportation offerings, and in fact adds another 13 counties to this category: Boone, Decatur, Fayette, Fulton, Hancock, Hendricks, Huntington, Miami, Morgan, Noble, Pike, Shelby, and Wells. See Transit Systems in Indiana, http://www.publictransportation.org/systems/state.asp?state=IN#A44. Cite as: 553 U. S. ____ (2008) 7 SOUTER, J., dissenting voters lived within 1 of these 21 counties.16 Among the counties with some public system, 21 provide service only within certain cities, and 32 others restrict public trans- portation to regional county service, leaving only 18 that offer countywide public transportation, see n. 15, supra. State officials recognize the effect that travel costs can have on voter turnout, as in Marion County, for example, where efforts have been made to “establis[h] most polling places in locations even more convenient than the statu- tory minimum,” in order to “provid[e] for neighborhood voting.” Brief for Respondents in No. 07–21, pp. 3–4. Although making voters travel farther than what is convenient for most and possible for some does not amount to a “severe” burden under Burdick, that is no reason to ignore the burden altogether. It translates into an obvious economic cost (whether in work time lost, or getting and paying for transportation) that an Indiana voter must bear to obtain an ID. For those voters who can afford the roundtrip, a second financial hurdle appears: in order to get photo identifica- tion for the first time, they need to present “ ‘a birth cer- tificate, a certificate of naturalization, U. S. veterans photo identification, U. S. military photo identification, or a U. S. passport.’ ” Ante, at 14, n. 16 (lead opinion) (quot- ing Ind. Admin. Code, tit. 140, §7–4–3 (2008)). As the lead opinion says, the two most common of these documents come at a price: Indiana counties charge anywhere from $3 to $12 for a birth certificate (and in some other States the fee is significantly higher), see ante, at 14, n. 16, and —————— The discrepancy appears to arise, in part, from the fact that the Ameri- can Public Transportation Association has not counted demand re- sponse systems that have been established in at least 6 of these 13 counties. See Annual Report 36, 50, 56, 96, 110, 144. 16 In 2000, approximately 9% of Indiana’s population lived within 1 of these 21 counties. See County and City Extra: Special Decennial Census Edition 169, 176 (D. Gaquin & K. DeBrandt eds. 2002). 8 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting that same price must usually be paid for a first-time pass- port, since a birth certificate is required to prove U. S. citizenship by birth. The total fees for a passport, more- over, are up to about $100.17 So most voters must pay at least one fee to get the ID necessary to cast a regular ballot.18 As with the travel costs, these fees are far from shocking on their face, but in the Burdick analysis it matters that both the travel costs and the fees are dispro- portionately heavy for, and thus disproportionately likely to deter, the poor, the old, and the immobile. B To be sure, Indiana has a provisional-ballot exception to the ID requirement for individuals the State considers “indigent”19 as well as those with religious objections to being photographed, see ante, at 15 (lead opinion), and this sort of exception could in theory provide a way around the costs of procuring an ID. But Indiana’s chosen excep- tion does not amount to much relief. —————— 17 See Department of State, How to Apply in Person for a Passport, http://travel.state.gov/passport/get/first/first_830.html; Department of State, Passport Fees (Feb. 1, 2008), http://travel.state.gov/passport/ get/fees/fees_837.html (total fees of $100 for a passport book and $45 for a passport card for individuals 16 and older). 18 The lead opinion notes that “the record does not provide even a rough estimate of how many indigent voters lack copies of their birth certificates.” Ante, at 19, n. 20. But the record discloses no reason to think that any appreciable number of poor voters would need birth certificates absent the Voter ID Law, and no reason to believe that poor people would spend money to get them if they did not need them. 19 To vote by provisional ballot, an individual must (at the circuit court clerk’s office) sign an affidavit affirming that she is “indigent” and “unable to obtain proof of identification without payment of a fee.” Ind. Code Ann. §3–11.7–5–2.5(c)(2)(A). Indiana law does not define the key terms “indigent” or “unable,” but I will assume for present purposes that the Indiana Supreme Court will eventually construe these terms broadly, so that the income threshold for indigency is at least at the federal poverty level, and so that the exception covers even individuals who are facing only short-term financial difficulties. Cite as: 553 U. S. ____ (2008) 9 SOUTER, J., dissenting The law allows these voters who lack the necessary ID to sign the poll book and cast a provisional ballot. See 458 F. Supp. 2d, at 786 (citing Ind. Code Ann. §3–11–8–25.1 (West Supp. 2007)). As the lead opinion recognizes, though, ante, at 15, that is only the first step; to have the provisional ballot counted, a voter must then appear in person before the circuit court clerk or county election board within 10 days of the election, to sign an affidavit attesting to indigency or religious objection to being pho- tographed (or to present an ID at that point),20 see 458 F. Supp. 2d, at 786. Unlike the trip to the BMV (which, assuming things go smoothly, needs to be made only once every four years for renewal of nondriver photo identifica- tion, see id.), this one must be taken every time a poor person or religious objector wishes to vote, because the State does not allow an affidavit to count in successive elections. And unlike the trip to the BMV (which at least has a handful of license branches in the more populous counties), a county has only one county seat. Forcing these people to travel to the county seat every time they try to vote is particularly onerous for the reason noted already, that most counties in Indiana either lack public transportation or offer only limited coverage. See supra, at 6–7. That the need to travel to the county seat each election amounts to a high hurdle is shown in the results of the 2007 municipal elections in Marion County, to which Indiana’s Voter ID Law applied. Thirty-four provisional ballots were cast, but only two provisional voters made it —————— 20 Indiana law allows voters to cast a provisional ballot at the county clerk’s office starting 29 days prior to election day until noon of the day prior to election day, see Ind. Code Ann. §3–11.7–5–2.5, and this might enable some voters to make only one burdensome trip to the county seat. But for the voters who show up at the polls to vote and are there told that they lack the photo identification needed to cast a regular ballot, the Voter ID Law effectively forces them to make two trips. 10 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting to the County Clerk’s Office within the 10 days. See Brief for Respondents in No. 07–21, pp. 8–9. All 34 of these aspiring voters appeared at the appropriate precinct; 33 of them provided a signature, and every signature matched the one on file; and 26 of the 32 voters whose ballots were not counted had a history of voting in Marion County elections. See id., at 9. All of this suggests that provisional ballots do not obvi- ate the burdens of getting photo identification. And even if that were not so, the provisional-ballot option would be inadequate for a further reason: the indigency exception by definition offers no relief to those voters who do not consider themselves (or would not be considered) indigent but as a practical matter would find it hard, for nonfinan- cial reasons, to get the required ID (most obviously the disabled). C Indiana’s Voter ID Law thus threatens to impose serious burdens on the voting right, even if not “severe” ones, and the next question under Burdick is whether the number of individuals likely to be affected is significant as well. Record evidence and facts open to judicial notice answer yes. Although the District Court found that petitioners failed to offer any reliable empirical study of numbers of voters affected, see ante, at 17 (lead opinion),21 we may accept that court’s rough calculation that 43,000 voting-age residents lack the kind of identification card required by Indiana’s law. See 458 F. Supp. 2d, at 807. The District —————— 21 Much like petitioners’ statistician, the BMV “has not been able to determine the approximate number of Indiana residents of voting age who are without an Indiana driver’s license or identification card,” 458 F. Supp. 2d 775, 791 (SD Ind. 2006), but the BMV does acknowledge “that there are persons who do not currently have [the required ID] and who are, or who will be, eligible to vote at the next election,” ibid. Cite as: 553 U. S. ____ (2008) 11 SOUTER, J., dissenting Court made that estimate by comparing BMV records reproduced in petitioners’ statistician’s report with U. S. Census Bureau figures for Indiana’s voting-age population in 2004, see ibid., and the State does not argue that these raw data are unreliable. The State, in fact, shows no discomfort with the District Court’s finding that an “estimated 43,000 individuals” (about 1% of the State’s voting-age population) lack a qualifying ID. Brief for Respondents in No. 07–25, p. 25. If the State’s willingness to take that number is surpris- ing, it may be less so in light of the District Court’s obser- vation that “several factors . . . suggest the percentage of Indiana’s voting age population with photo identification is actually lower than 99%,” 458 F. Supp. 2d, at 807, n. 43,22 a suggestion in line with national surveys showing —————— 22 The District Court explained: “[O]ur simple comparison of raw numbers does not take into account: individuals who have died but whose Indiana driver’s license or identi- fication cards have not expired; individuals who have moved outside the state and no longer consider themselves Indiana residents but who still retain a valid Indiana license or identification card; individuals who have moved into Indiana and now consider themselves Indiana residents but have not yet obtained an Indiana license or identification; and individuals, such as students, who are residing in Indiana tempo- rarily, are registered to vote in another state, but have obtained an Indiana license or identification.” Id., at 807, n. 43. The District Court also identified three factors that, in its view, might require deductions of the 43,000 figure. First, the District Court noted that BMV records do not cover all forms of identification that may be used to vote under the Voter ID Law (e.g., federal photo identi- fication, such as a passport). This is a valid consideration, but is unlikely to overcome the additions that must be made for the various factors listed above. Second, the court noted that the BMV records do not account for the exceptions to the photo identification requirement (such as the indigency and absentee-ballot exceptions). This factor does not warrant a deduction of the 43,000 number because, as I have argued, the indigency exception imposes serious burdens of its own, see supra, at 8–10, and the absentee-ballot exception is not a wholly adequate substitute for voting in person, see n. 4, supra. Finally, the 12 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting roughly 6–10% of voting-age Americans without a state- issued photo-identification card. See Brief for Petitioners in No. 07–21, pp. 39–40, n. 17 (citing National Commis- sion on Election Reform, To Assure Pride and Confidence: Task Force Reports, ch. VI: Verification of Identity, p. 4 (Aug. 2001), http://webstorage3.mcpa.virginia.edu/com- misions/comm_2001_taskforce.pdf). We have been offered no reason to think that Indiana does a substantially better job of distributing IDs than other States.23 So a fair reading of the data supports the District Court’s finding that around 43,000 Indiana residents lack the needed identification, and will bear the burdens the law imposes. To be sure, the 43,000 figure has to be dis- counted to some extent, residents of certain nursing homes being exempted from the photo identification requirement. 458 F. Supp. 2d, at 786. But the State does not suggest that this narrow exception could possibly reduce 43,000 to an insubstantial number.24 —————— District Court noted that many individuals are not registered to vote. For reasons I lay out in note 24, infra, I am not convinced that this fact is relevant at all. 23 Although the lead opinion expresses confidence that the percentage of voters without the necessary photo ID will steadily decrease, see ante, at 4, n. 6, and suggests that the number may already have dropped, see ante, at 18, n. 20, there is reason to be less sanguine. See ACLU Sues To Halt License Revocation, Fort Wayne J. Gazette, Feb. 9, 2008, p. 3C (“The American Civil Liberties Union is suing the state to prevent the possible revocation of up to 56,000 driver’s licenses that don’t match information in a Social Security database. Many of the mismatches were created by typographical errors or by people getting married and changing their last names, the [BMV] said last week when it announced it had sent warning letters to about 206,000 people in Indiana”); see also Dits, Court Date Set for Bid To Stop BMV, South Bend Tribune, Feb. 21, 2008; Who To Blame in Name Game? Many Caught in Name Game; Merging BMV, Social Security Databases Forcing Many To Hire Lawyers, The Post-Tribune, Jan. 8, 2008, p. A5; Snelling, Name Issue Blocks License, Merrillville Post-Tribune, Jan. 7, 2008, p. A6. 24 The State does imply that we should further discount the 43,000 Cite as: 553 U. S. ____ (2008) 13 SOUTER, J., dissenting The upshot is this. Tens of thousands of voting-age residents lack the necessary photo identification. A large proportion of them are likely to be in bad shape economi- cally, see 472 F.3d 949, 951 (CA7 2007) (“No doubt most people who don’t have photo ID are low on the economic ladder”); cf. Bullock v. Carter, 405 U.S. 134, 144 (1972) (“[W]e would ignore reality were we not to recognize that this system falls with unequal weight on voters . . . accord- ing to their economic status”).25 The Voter ID Law places hurdles in the way of either getting an ID or of voting provisionally, and they translate into nontrivial economic costs. There is accordingly no reason to doubt that a sig- nificant number of state residents will be discouraged or —————— estimate to exclude citizens who are not registered to vote, or who are registered but not planning to vote. See Brief for Respondents in No. 07–25, p. 25; see also ante, at 17 (lead opinion) (“[T]he evidence in the record does not provide us with the number of registered voters without photo identification”). But that argument is flatly contradicted by this Court’s settled precedent. As our cases have recognized, disfranchise- ment is disfranchisement, whether or not the disfranchised voter would have voted if given the choice. That is why in Dunn v. Blumstein, 405 U.S. 330 (1972), the Court did not ask whether any significant number of individuals deprived of the right to vote by durational residence requirements would actually have chosen to vote. And in Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966), the Court did not pause to consider whether any of the qualified voters deterred by the $1.50 poll tax would have opted to vote if there had been no fee. Our cases make clear that the Constitution protects an individual’s ability to vote, not merely his decision to do so. 25 Studies in other States suggest that the burdens of an ID require- ment may also fall disproportionately upon racial minorities. See Overton, Voter Identification, 105 Mich. L. Rev. 631, 659 (2007) (“In 1994, the U. S. Department of Justice found that African-Americans in Louisiana were four to five times less likely than white residents to have government-sanctioned photo identification”); id., at 659–660 (describing June 2005 study by the Employment and Training Institute at the University of Wisconsin-Milwaukee, which found that while 17% of voting-age whites lacked a valid driver’s license, 55% of black males and 49% of black females were unlicensed, and 46% of Latino males and 59% of Latino females were similarly unlicensed). 14 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting disabled from voting. Cf. 458 F. Supp. 2d, at 823 (“We do not doubt that such individuals exist somewhere, even though Plaintiffs were unable to locate them”); 472 F. 3d, at 952 (“No doubt there are at least a few [whom the law will deter from voting] in Indiana . . .”); see also ante, at 15 (lead opinion). Petitioners, to be sure, failed to nail down precisely how great the cohort of discouraged and totally deterred voters will be, but empirical precision beyond the foregoing num- bers has never been demanded for raising a voting-rights claim. Cf. Washington State Grange v. Washington State Republican Party, 552 U.S. ___, ___ (2008) (ROBERTS, C. J., concurring) (slip op., at 4) (“Nothing in my analysis requires the parties to produce studies regarding voter perceptions on this score”); Dunn v. Blumstein, 405 U.S. 330, 335, n. 5 (1972) (“[I]t would be difficult to determine precisely how many would-be voters throughout the coun- try cannot vote because of durational residence require- ments”); Bullock, supra, at 144 (taking account of “the obvious likelihood” that candidate filing fees would “fall more heavily on the less affluent segment of the commu- nity, whose favorites may be unable to pay the large costs”). While of course it would greatly aid a plaintiff to establish his claims beyond mathematical doubt, he does enough to show that serious burdens are likely. Thus, petitioners’ case is clearly strong enough to prompt more than a cursory examination of the State’s asserted interests. And the fact that Indiana’s photo identification requirement is one of the most restrictive in the country, see Brief for Current and Former State Secre- taries of State as Amici Curiae 27–30 (compiling state voter-identification statutes); see also Brief for Texas et al. as Amici Curiae 10–13 (same),26 makes a critical examina- —————— 26 Unlike the Help America Vote Act of 2002, 116 Stat. 1666, 42 U.S. C. §5301 et seq. (2000 ed., Supp. V), which generally requires Cite as: 553 U. S. ____ (2008) 15 SOUTER, J., dissenting tion of the State’s claims all the more in order. Cf. Ran- —————— proof of identification but allows for a variety of documents to qualify, see ante, at 8–9 (lead opinion), Indiana accepts only limited forms of federally issued or state-issued photo identification, see n. 3, supra, and does not allow individuals lacking the required identification to cast a regular ballot at the polls. Only one other State, Georgia, currently restricts voters to the narrow forms of government-issued photo identi- fication. See Ga. Code Ann. §21–2–417 (Supp. 2007). But a birth certificate is not needed to get a Georgia voter identification card. See Ga. Code Ann. §21–2–417.1 (Supp. 2007); Ga. Comp. Rules & Regs., Rule 183–1–20.01 (2006). Missouri’s Legislature passed a restrictive photo identification law comparable to Indiana’s, but the Missouri Supreme Court struck it down as violative of the state constitution. Weinschenk v. State, 203 S.W.3d 201 (2006) (per curiam). Florida requires photo identification, but permits the use of several forms, including a debit or credit card; military identification; student identification; retirement center identi- fication; neighborhood center identification; and public assistance identification. See Fla. Stat. Ann. §101.043(1) (West Supp. 2008). Moreover, a Florida voter who lacks photo identification may cast a provisional ballot, and that ballot will be counted so long as the signa- ture on the ballot matches the one on the voter’s registration. §§101.043(2), 101.048. All other States that require identification at the polls either allow voters to identify themselves using a variety of documents, see Ala. Code §17–9–30 (2007); Alaska Stat. §15.15.225 (2006); Ariz. Rev. Stat. Ann. §16–579 (West 2006); Ark. Code Ann. §7–5–305(a)(8) (2007); Colo. Rev. Stat. §§1–1–104(19.5), 1–7–110 (2007); Ky. Rev. Stat. Ann. §117.227 (Lexis 2004); Mont. Code Ann. §13–13–114 (2007); N. M. Stat. Ann. §§1–1–24, 1–12–7.1, as amended by 2008 N. M. Laws ch. 59; §1– 12–8 (Cum. Supp. 2007); Ohio Rev. Code Ann. §§3503.16(B)(1), 3505.18 (Lexis Supp. 2007); S. C. Code Ann. §§7–5–125, 7–13–710 (Cum. Supp. 2007); Tenn. Code Ann. §2–7–112 (2003); Texas Elec. Code Ann. §§63.001–63.009 (West 2003 and Supp. 2007); §63.0101 (West Supp. 2007); Wash. Rev. Code §29A.44.205 (2006), or allow voters lacking identification to cast a regular ballot upon signing an affidavit (or providing additional identifying information), see Conn. Gen. Stat. §9– 261 (2007); Del. Code Ann., Tit. 15, §4937 (2007); Haw. Rev. Stat. §11– 136 (2006 Cum. Supp.); La. Rev. Stat. Ann. §18:562 (West Supp. 2008); Mich. Comp. Laws Ann. §168.523(1) (West Supp. 2007); N. D. Cent. Code Ann. §16.1–05–07 (Lexis Supp. 2007); S. D. Codified Laws §§12– 18–6.1, 12–18–6.2 (2004); Va. Code Ann. §24.2–643 (Lexis 2006). 16 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting dall v. Sorrell, 548 U.S. 230, 253 (2006) (plurality opinion) (citing as a “danger sig[n]” that “contribution limits are substantially lower than . . . comparable limits in other States,” and concluding that “[w]e consequently must examine the record independently and carefully to deter- mine whether [the] limits are ‘closely drawn’ to match the State’s interests”); id., at 284, 288 (SOUTER, J., dissenting) (finding that deference was appropriate on the reasoning that limits were “consistent with limits set by the legisla- tures of many other States, all of them with populations larger than Vermont’s,” and that “[t]he Legislature of Vermont evidently tried to account for the realities of campaigning in Vermont”). III Because the lead opinion finds only “limited” burdens on the right to vote, see ante, at 18, it avoids a hard look at the State’s claimed interests. See ante, at 7–13. But having found the Voter ID Law burdens far from trivial, I have to make a rigorous assessment of “ ‘the precise inter- ests put forward by the State as justifications for the burden imposed by its rule,’ [and] ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick, 504 U. S., at 434 (quoting Anderson, 460 U. S., at 789). As this quotation from Burdick indicates, the interests claimed to justify the regulatory scheme are subject to discount in two distinct ways. First, the generalities raised by the State have to be shaved down to the precise “aspect[s of claimed interests] addressed by the law at issue.” California Democratic Party v. Jones, 530 U.S. 567, 584 (2000) (emphasis omitted); see ibid. (scrutiny of state interests “is not to be made in the abstract, by ask- ing whether [the interests] are highly significant values; but rather by asking whether the aspect of [those inter- ests] addressed by the law at issue is highly significant” Cite as: 553 U. S. ____ (2008) 17 SOUTER, J., dissenting (emphasis in original)). And even if the State can show particularized interests addressed by the law, those inter- ests are subject to further discount depending on “the extent to which [they] make it necessary to burden the plaintiff’s rights.” Burdick, supra, at 434 (internal quota- tion marks omitted). As the lead opinion sees it, the State has offered four related concerns that suffice to justify the Voter ID Law: modernizing election procedures, combating voter fraud, addressing the consequences of the State’s bloated voter rolls, and protecting public confidence in the integrity of the electoral process. See ante, at 7–13. On closer look, however, it appears that the first two (which are really just one) can claim modest weight at best, and the latter two if anything weaken the State’s case. A The lead opinion’s discussion of the State’s reasons begins with the State’s asserted interests in “election modernization,” ante, at 8–10, and in combating voter fraud, see ante, at 11–13. Although these are given sepa- rate headings, any line drawn between them is unconvinc- ing; as I understand it, the “effort to modernize elections,” Brief for Respondents in No. 07–25, p. 12, is not for mod- ernity’s sake, but to reach certain practical (or political) objectives.27 In any event, if a proposed modernization were in fact aimless, if it were put forward as change for change’s sake, a State could not justify any appreciable burden on the right to vote that might ensue; useless technology has no constitutional value. And in fact that is not the case here. The State says that it adopted the ID law principally to combat voter fraud, and it is this claim, —————— 27 See generally R. Saltman, The History and Politics of Voting Tech- nology: In Quest of Integrity and Public Confidence (2006) (tracing the history of changes in methods of voting in the United States, and the social and political considerations behind them). 18 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting not the slogan of “election modernization,” that warrants attention. 1 There is no denying the abstract importance, the com- pelling nature, of combating voter fraud. See Purcell, 549 U. S., at 4 (acknowledging “the State’s compelling interest in preventing voter fraud”); cf. Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 231 (1989) (“A State indisputably has a compelling interest in preserving the integrity of its election process”). But it takes several steps to get beyond the level of abstraction here. To begin with, requiring a voter to show photo identifi- cation before casting a regular ballot addresses only one form of voter fraud: in-person voter impersonation. The photo ID requirement leaves untouched the problems of absentee-ballot fraud, which (unlike in-person voter im- personation) is a documented problem in Indiana, see 458 F. Supp. 2d, at 793; of registered voters voting more than once (but maintaining their own identities) in different counties or in different States; of felons and other disquali- fied individuals voting in their own names; of vote buying; or, for that matter, of ballot-stuffing, ballot miscounting, voter intimidation, or any other type of corruption on the part of officials administering elections. See Brief for Brennan Center for Justice et al. as Amici Curiae 7. And even the State’s interest in deterring a voter from showing up at the polls and claiming to be someone he is not must, in turn, be discounted for the fact that the State has not come across a single instance of in-person voter impersonation fraud in all of Indiana’s history. See 458 F. Supp. 2d, at 792–793; see also ante, at 11–13 (lead opinion). Neither the District Court nor the Indiana Gen- eral Assembly that passed the Voter ID Law was given any evidence whatsoever of in-person voter impersonation fraud in the State. See 458 F. Supp. 2d, at 793. This Cite as: 553 U. S. ____ (2008) 19 SOUTER, J., dissenting absence of support is consistent with the experience of several veteran poll watchers in Indiana, each of whom submitted testimony in the District Court that he had never witnessed an instance of attempted voter imper- sonation fraud at the polls. Ibid. It is also consistent with the dearth of evidence of in-person voter impersonation in any other part of the country. See ante, at 11, n. 11 (lead opinion) (conceding that there are at most “scattered instances of in-person voter fraud”); see also Brief for Brennan Center for Justice, supra, at 11–25, 25 (demon- strating that “the national evidence—including the very evidence relied on by the courts below—suggests that the type of voting fraud that may be remedied by a photo ID requirement is virtually nonexistent: the ‘problem’ of voter impersonation is not a real problem at all”).28 The State responds to the want of evidence with the assertion that in-person voter impersonation fraud is hard to detect. But this is like saying the “man who wasn’t there” is hard to spot,29 and to know whether difficulty in detection accounts for the lack of evidence one at least has to ask whether in-person voter impersonation is (or would be) relatively harder to ferret out than other kinds of fraud (e.g., by absentee ballot) which the State has had no trou- ble documenting. The answer seems to be no; there is reason to think that “impersonation of voters is . . . the most likely type of fraud to be discovered.” U. S. Election Assistance Commission, Election Crimes: An Initial Re- —————— 28 The lack of evidence of in-person voter impersonation fraud is not for failure to search. See, e.g., Lipton & Urbina, In 5-Year Effort, Scant Evidence of Voter Fraud, N. Y. Times, Apr. 12, 2007, p. A1 (“Five years after the Bush Administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organ- ized effort to skew federal elections, according to court records and interviews”). 29 “As I was going up the stair / I met a man who wasn’t there.” H. Mearns, Antigonish, reprinted in Best Remembered Poems 107 (M. Gardner ed. 1992). 20 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting view and Recommendations for Future Study 9 (Dec. 2006), http://www.eac.gov/clearinghouse/docs/reports-and- surveys-2006electioncrimes.pdf/attachment_download/file (hereinafter EAC Report). This is in part because an individual who impersonates another at the polls commits his fraud in the open, under the scrutiny of local poll workers who may well recognize a fraudulent voter when they hear who he claims to be. See Brief for Respondents in No. 07–21, p. 6 (“[P]recinct workers may recognize an imposter, and precinct election workers have the authority to challenge persons appearing to vote if the election board member ‘is not satisfied that a person who offers to vote is the person who the person represents the person to be’ ” (quoting Ind. Code Ann. §3–11–8–27 (West 2006))). The relative ease of discovering in-person voter imper- sonation is also owing to the odds that any such fraud will be committed by “organized groups such as campaigns or political parties” rather than by individuals acting alone. L. Minnite & D. Callahan, Securing the Vote: An Analysis of Election Fraud 14 (2003). It simply is not worth it for individuals acting alone to commit in-person voter imper- sonation, which is relatively ineffectual for the foolish few who may commit it. If an imposter gets caught, he is subject to severe criminal penalties. See, e.g., Ind. Code Ann. §3–14–2–9 (making it a felony “knowingly [to] vot[e] or offe[r] to vote at an election when the person is not registered or authorized to vote”); §3–14–2–11 (with cer- tain exceptions, “a person who knowingly votes or offers to vote in a precinct except the one in which the person is registered and resides” commits a felony); §3–14–2–12(1) (making it a felony “knowingly [to] vot[e] or mak[e] appli- cation to vote in an election in a name other than the person’s own”); §3–14–2–12(2) (a person who, “having voted once at an election, knowingly applies to vote at the same election in the person’s own name or any other name” commits a felony); see also 42 U.S. C. §1973i(e)(1) Cite as: 553 U. S. ____ (2008) 21 SOUTER, J., dissenting (any individual who “votes more than once” in certain federal elections “shall be fined not more than $10,000 or imprisoned not more than five years, or both”). And even if he succeeds, the imposter gains nothing more than one additional vote for his candidate. See EAC Report 9 (in- person voter impersonation “is an inefficient method of influencing an election”); J. Levitt, The Truth about Voter Fraud 7 (2007) (“[F]raud by individual voters is a singu- larly foolish and ineffective way to attempt to win an election. Each act of voter fraud in connection with a federal election risks five years in prison and a $10,000 fine, in addition to any state penalties. In return, it yields at most one incremental vote. That single extra vote is simply not worth the price” (footnote omitted)); cf. 472 F. 3d, at 951 (“[A] vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote” (emphasis in original)). In sum, fraud by individuals acting alone, however difficult to detect, is unlikely. And while there may be greater incentives for organized groups to engage in broad- gauged in-person voter impersonation fraud, see Minnite & Callahan, supra, at 20, it is also far more difficult to conceal larger enterprises of this sort. The State’s argu- ment about the difficulty of detecting the fraud lacks real force. 2 Nothing else the State has to say does much to bolster its case. The State argues, for example, that even without evidence of in-person voter impersonation in Indiana, it is enough for the State to show that “opportunities [for such fraud] are transparently obvious in elections without identification checks,” Brief for Respondents in No. 07–25, p. 54. Of course they are, but Indiana elections before the Voter ID Law were not run “without identification checks”; 22 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting on the contrary, as the Marion County Election Board informs us, “[t]ime-tested systems were in place to detect in-person voter impersonation fraud before the challenged statute was enacted,” Brief for Respondents in No. 07–21, p. 6. These included hiring poll workers who were pre- cinct residents familiar with the neighborhood, and mak- ing signature comparisons, each effort being supported by the criminal provisions mentioned before. Id., at 6–8. For that matter, the deterrence argument can do only so much work, since photo identification is itself hardly a failsafe against impersonation. Indiana knows this, and that is why in 2007 the State began to issue redesigned driver’s licenses with digital watermarking.30 The State has made this shift precisely because, in the words of its BMV, “visual inspection is not adequate to determine the authenticity” of driver’s licenses. See Indiana BMV, su- pra, n. 30. Indeed, the BMV explains that the digital watermarks (which can be scanned using equipment that, so far, Indiana does not use at polling places) is needed to “tak[e] the guesswork out of inspection.” Ibid.31 So, at least until polling places have the machines and special software to scan the new driver’s licenses, and until all the licenses with the older designs expire (the licenses issued after 2006 but before the 2007 redesigning are good until 2012, see 458 F. Supp. 2d, at 791), Indiana’s law does no more than assure that any in-person voter fraud will take place with fake IDs, not attempted signature forgery. —————— 30 See Indiana BMV, Digital Drivers License: Frequently Asked Ques- tions, “What is a digital watermark and why is Indiana incorporating it into their driver license?”, http://www.in.gov/bmv/3382.htm. 31 In the words of Indiana’s Governor, Mitch Daniels: “ ‘Not very long ago, Indiana driver’s licenses were a late-night talk show joke [because of] the ease of their fraudulent issuance and also their duplication . . . . [The new design] will make particularly their duplication dramatically more difficult.’ ” Udell, Digital Driver’s Licenses Designed To Stem ID Theft, Evansville Courier, June 7, 2007, p. B6. Cite as: 553 U. S. ____ (2008) 23 SOUTER, J., dissenting Despite all this, I will readily stipulate that a State has an interest in responding to the risk (however small) of in- person voter impersonation. See ante, at 12 (lead opinion). I reach this conclusion, like others accepted by the Court, because “ ‘[w]here a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empiri- cal legislative judgments.’ ” Randall, 548 U. S., at 285 (SOUTER, J., dissenting) (quoting Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402 (2000) (BREYER, J., concurring)). Weight is owed to the legislative judgment as such. But the ultimate valuation of the particular interest a State asserts has to take account of evidence against it as well as legislative judgments for it (certainly when the law is one of the most restrictive of its kind, see n. 26, supra), and on this record it would be unreasonable to accord this assumed state interest more than very modest significance.32 3 The antifraud rationale is open to skepticism on one further ground, what Burdick spoke of as an assessment of the degree of necessity for the State’s particular course of action. Two points deserve attention, the first being that —————— 32 On such flimsy evidence of fraud, it would also ignore the lessons of history to grant the State’s interest more than modest weight, as the interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules. See F. Ogden, The Poll Tax in the South 9 (1958) (“In Arkansas and Texas, the argument was fre- quently presented that a poll tax payment prerequisite would purify elections by preventing repeaters and floaters from voting”); see also Brief for Historians and Other Scholars as Amici Curiae 4–15 (detailing abuses); R. Hayduk, Gatekeepers to the Franchise: Shaping Election Administration in New York 36 (2005) (“In both historical and contem- porary contexts certain groups have had an interest in alleging fraud and thereby shaping electoral rules and practices in a restrictive direction, and other groups have had an opposite interest”). 24 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting the State has not even tried to justify its decision to im- plement the photo identification requirement immediately on passage of the new law. A phase-in period would have given the State time to distribute its newly designed li- censes, and to make a genuine effort to get them to indi- viduals in need, and a period for transition is exactly what the Commission on Federal Election Reform, headed by former President Carter and former Secretary of State Baker, recommended in its report. See Building Confi- dence in U. S. Elections §2.5 (Sept. 2005), App. 136, 140 (hereinafter Carter-Baker Report) (“For the next two federal elections, until January 1, 2010, in states that require voters to present ID at the polls, voters who fail to do so should nonetheless be allowed to cast a provisional ballot, and their ballot would count if their signature is verified”). During this phase-in period, the report said, States would need to make “efforts to ensure that all voters are provided convenient opportunities to obtain” the required identification. Id., at 141. The former President and former Secretary of State explained this recommenda- tion in an op-ed essay: “Yes, we are concerned about the approximately 12 percent of citizens who lack a driver’s license. So we proposed that states finally assume the responsibility to seek out citizens to both register voters and provide them with free ID’s that meet federal standards. States should open new offices, use social service agencies and deploy mobile offices to register voters. By connecting ID’s to registration, voting participa- tion will be expanded.” Carter & Baker, Voting Re- form is in the Cards, N. Y. Times, Sept. 23, 2005, p. A19. Although Indiana claims to have adopted its ID require- ment relying partly on the Carter-Baker Report, see Brief for Respondents in No. 07–25, pp. 5, 13, 49; see also ante, Cite as: 553 U. S. ____ (2008) 25 SOUTER, J., dissenting at 10 (lead opinion), the State conspicuously rejected the Report’s phase-in recommendation aimed at reducing the burdens on the right to vote, and just as conspicuously fails even to try to explain why. What is left of the State’s claim must be downgraded further for one final reason: regardless of the interest the State may have in adopting a photo identification re- quirement as a general matter, that interest in no way necessitates the particular burdens the Voter ID Law imposes on poor people and religious objectors. Individu- als unable to get photo identification are forced to travel to the county seat every time they wish to exercise the fran- chise, and they have to get there within 10 days of the election. See supra, at 8–10. Nothing about the State’s interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places. In briefing this Court, the State responds by pointing to an interest in keeping lines at polling places short. See Brief for Respondents in No. 07–25, p. 58. It warns that “[i]f election workers—a scarce resource in any election— must attend to the details of validating provisional ballots, voters may have to wait longer to vote,” and it assures us that “[n]othing deters voting so much as long lines at the polls.” Ibid. But this argument fails on its own terms, for whatever might be the number of individuals casting a provisional ballot, the State could simply allow voters to sign the indigency affidavit at the polls subject to review there after the election.33 After all, the Voter ID Law already requires voters lacking photo identification to —————— 33 Florida has accommodated voters in this manner. In Florida a voter who casts a provisional ballot may have that vote counted if the voter’s signature on the provisional-ballot certification matches the signature on the voter’s registration. See Fla. Stat. Ann. §§101.043, 101.048. The voter is not required to make a second trip to have her provisional ballot counted. 26 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting sign, at the polling site, an affidavit attesting to proper registration. See 458 F. Supp. 2d, at 786. Indeed, the State’s argument more than fails; it back- fires, in implicitly conceding that a not-insignificant num- ber of individuals will need to rely on the burdensome provisional-ballot mechanism. What is more, as the Dis- trict Court found, the Voter ID Law itself actually in- creases the likelihood of delay at the polls. Since any minor discrepancy between a voter’s photo identification card and the registration information may lead to a chal- lenge, “the opportunities for presenting challenges ha[ve] increased as a result of the photo identification require- ments.” Id., at 789; cf. 472 F. 3d, at 955 (Evans, J., dis- senting) (“The potential for mischief with this law is obvi- ous. Does the name on the ID ‘conform’ to the name on the voter registration list? If the last name of a newly married woman is on the ID but her maiden name is on the registration list, does it conform? If a name is mis- spelled on one—Schmit versus Schmitt—does it conform? If a ‘Terence’ appears on one and a shortened ‘Terry’ on the other, does it conform?”). B The State’s asserted interests in modernizing elections and combating fraud are decidedly modest; at best, they fail to offset the clear inference that thousands of Indiana citizens will be discouraged from voting. The two remain- ing justifications, meanwhile, actually weaken the State’s case. The lead opinion agrees with the State that “the infla- tion of its voter rolls is further support for its enactment of” the Voter ID Law. Ante, at 12. This is a puzzling conclusion, given the fact, which the lead opinion notes, that the National Government filed a complaint against Indiana, containing this allegation: “Indiana has failed to conduct a general program that Cite as: 553 U. S. ____ (2008) 27 SOUTER, J., dissenting makes a reasonable effort to identify and remove in- eligible voters from the State’s registration list; has failed to remove such ineligible voters; and has failed to engage in oversight actions sufficient to ensure that local election jurisdictions identify and remove such ineligible voters.” App. 309, 312. The Federal Government and the State agreed to settle the case, and a consent decree and order have been en- tered, see ante, at 12–13, requiring Indiana to fulfill its list-maintenance obligations under §8 of the National Voter Registration Act of 1993, 107 Stat. 82, 42 U.S. C. §1973gg–6. How any of this can justify restrictions on the right to vote is difficult to say. The State is simply trying to take advantage of its own wrong: if it is true that the State’s fear of in-person voter impersonation fraud arises from its bloated voter checklist, the answer to the problem is in the State’s own hands. The claim that the State has an inter- est in addressing a symptom of the problem (alleged im- personation) rather than the problem itself (the negli- gently maintained bloated rolls) is thus self-defeating; it shows that the State has no justifiable need to burden the right to vote as it does, and it suggests that the State is not as serious about combating fraud as it claims to be.34 The State’s final justification, its interest in safeguard- ing voter confidence, similarly collapses. The problem with claiming this interest lies in its connection to the bloated voter rolls; the State has come up with nothing to suggest that its citizens doubt the integrity of the State’s —————— 34 The voting-rolls argument also suggests that it would not be so difficult to detect in-person voter fraud after all. If it is true that practitioners of fraud are most likely to vote in the name of registered voters whom they know to have died or left the jurisdiction, then Indiana could simply audit its voting records to examine whether, and how often, in-person votes were cast using these invalid registrations. 28 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting electoral process, except its own failure to maintain its rolls. The answer to this problem is not to burden the right to vote, but to end the official negligence. It should go without saying that none of this is to deny States’ legitimate interest in safeguarding public confi- dence. The Court has, for example, recognized that fight- ing perceptions of political corruption stemming from large political contributions is a legitimate and substantial state interest, underlying not only campaign finance laws, but bribery and antigratuity statutes as well. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 390 (2000). But the force of the interest depends on the facts (or plausibility of the assumptions) said to justify invoking it. See id., at 391 (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”). While we found in Nixon that “there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters,” id., at 395, there is plenty of reason to be doubtful here, both about the reality and the perception. It is simply not plausible to assume here, with no evidence of in-person voter imper- sonation fraud in a State, and very little of it nationwide, that a public perception of such fraud is nevertheless “inherent” in an election system providing severe criminal penalties for fraud and mandating signature checks at the polls. Cf. id., at 390 (“[T]he perception of corruption [is] ‘inherent in a regime of large individual financial contri- butions’ to candidates for public office” (quoting Buckley v. Valeo, 424 U.S. 1, 27 (1976) (per curiam)). C Without a shred of evidence that in-person voter imper- sonation is a problem in the State, much less a crisis, Cite as: 553 U. S. ____ (2008) 29 SOUTER, J., dissenting Indiana has adopted one of the most restrictive photo identification requirements in the country. The State recognizes that tens of thousands of qualified voters lack the necessary federally issued or state-issued identifica- tion, but it insists on implementing the requirement im- mediately, without allowing a transition period for tar- geted efforts to distribute the required identification to individuals who need it. The State hardly even tries to explain its decision to force indigents or religious objectors to travel all the way to their county seats every time they wish to vote, and if there is any waning of confidence in the administration of elections it probably owes more to the State’s violation of federal election law than to any imposters at the polling places. It is impossible to say, on this record, that the State’s interest in adopting its sig- nally inhibiting photo identification requirement has been shown to outweigh the serious burdens it imposes on the right to vote. If more were needed to condemn this law, our own precedent would provide it, for the calculation revealed in the Indiana statute crosses a line when it targets the poor and the weak. Cf. Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) (“[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a par- ticular viewpoint, associational preference, or economic status”). If the Court’s decision in Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966), stands for anything, it is that being poor has nothing to do with being qualified to vote. Harper made clear that “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” Id., at 668. The State’s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified economic 30 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting burdens uncomfortably close to the outright $1.50 fee we struck down 42 years ago. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deter- ring poorer residents from exercising the franchise. * * * The Indiana Voter ID Law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unrea- sonable and irrelevant burden on voters who are poor and old. I would vacate the judgment of the Seventh Circuit, and remand for further proceedings. Cite as: 553 U. S. ____ (2008) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 07–21 and 07–25 _________________ WILLIAM CRAWFORD, ET AL., PETITIONERS 07–21 v. MARION COUNTY ELECTION BOARD ET AL. INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS 07–25 v. TODD ROKITA, INDIANA SECRETARY OF STATE, ET AL.

Indiana’s “Voter ID Law”1 threatens to impose nontriv- ial burdens on the voting right of tens of thousands of the State’s citizens, see ante, at 1– (lead opinion), and a significant percentage of those individuals are likely to be deterred from voting, see ante, at –1. The statute is unconstitutional under the balancing standard of v. Takushi, : a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–1, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried. I therefore respectfully dissent from the Court’s judgment —————— 1 Senate Enrolled Act No. 8, 2005 Ind. Acts p. 2005. 2 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting sustaining the statute.2 I Voting-rights cases raise two competing interests, the one side being the fundamental right to vote. See ); see also ; ; Reynolds v. Sims, 77 U.S. 5, 51–52 (19); Yick Wo v. Hopkins, 118 U.S. 5, 70 (188). The Judiciary is obliged to train a skepti- cal eye on any qualification of that right. See Reynolds, (“Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged in- fringement of the right of citizens to vote must be carefully and meticulously scrutinized”). As against the unfettered right, however, lies the “[c]ommon sense, as well as constitutional law that government must play an active role in structuring elec- tions; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” ); see also (“Election laws will invariably impose some burden upon individual voters”). Given the legitimacy of interests on both sides, we have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis: the scrutiny varies with the effect of the regulation at issue. And whatever the claim, the —————— 2 I agree with the lead opinion that the petitioners in No. 07–25 have standing and that we therefore need not determine whether the re- maining petitioners also have standing. See ante, at 5, n. 7. Cite as: 55 U. S. (2008) SOUTER, J., dissenting Court has long made a careful, ground-level appraisal both of the practical burdens on the right to vote and of the State’s reasons for imposing those precise burdens. Thus, in : “A court considering [such] a challenge must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Four- teenth Amendments that the plaintiff seeks to vindi- cate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plain- tiff’s rights.’ ” ). The lead opinion does not disavow these basic principles. See ante, at –7 (discussing ); see also ante, at 7 (“However slight [the] burden may appear, it must be justified by relevant and legitimate state interests suffi- ciently weighty to justify the limitation” (internal quota- tion marks omitted)). But I think it does not insist enough on the hard facts that our standard of review demands. II Under “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Four- teenth Amendment rights,” upon an assessment of the “character and magnitude of the as- serted [threatened] injury,” (quoting Anderson, su- pra, at ), and an estimate of the number of voters likely to be affected. A The first set of burdens shown in these cases is the travel costs and fees necessary to get one of the limited variety of federal or state photo identifications needed to CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting cast a regular ballot under the Voter ID Law. The travel is required for the personal visit to a license branch of the Indiana Bureau of Motor Vehicles (BMV), which is de- manded of anyone applying for a driver’s license or non- driver photo identification. See Indiana Democratic Party v. Rokita, The need to travel to a BMV branch will affect voters according to their circumstances, with the average person probably viewing it as nothing more than an inconvenience. Poor, old, and disabled voters who do not drive a car, however, may find the trip prohibitive, witness the fact that the —————— Under Indiana’s law, an ID does not qualify as proof of identification unless it “satisfies all [of] the following”: “(1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual’s voter registration record. “(2) The document shows a photograph of the individual to whom the document was issued. “() The document includes an expiration date, and the document: “(A) is not expired; or “(B) expired after the date of the most recent general election. “() The document was issued by the United States or the state of Indiana.” –5–2–0.5 The State asserts that the elderly and disabled are adequately ac- commodated through their option to cast absentee ballots, and so any burdens on them are irrelevant. See Brief for Respondents in No. 07– 25, p. 1. But as petitioners’ amici AARP and the National Senior Citizens Law Center point out, there are crucial differences between the absentee and regular ballot. Brief for AARP et al. as Amici Curiae 12–1. Voting by absentee ballot leaves an individual without the possibility of receiving assistance from poll workers, and thus increases the likelihood of confusion and error. More seriously, as the Supreme Court of Indiana has recognized, Indiana law “treats absentee voters differently from the way it treats Election Day voters,” in the important sense that “an absentee ballot may not be recounted in situations where clerical error by an election officer rendered it invalid.” Horse- The State itself notes that “election officials routinely reject absentee ballots on suspicion of forgery.” Brief for Respondents in No. 07–25, p. 2. The record indi- cates that voters in Indiana are not unaware of these risks. One Cite as: 55 U. S. (2008) 5 SOUTER, J., dissenting BMV has far fewer license branches in each county than there are voting precincts.5 Marion County, for example, has over 900 active voting precincts, see Brief for Respon- dents in No. 07–21, p. yet only 12 BMV license branches;7 in Lake County, there are 55 active voting precincts, see n. to match up with only 8 BMV locations;8 and Allen County, with 09 active voting pre- cincts, see has only BMV license branches.9 The same pattern holds in counties with smaller populations. Brown County has 12 active voter precincts, see and only one BMV office;10 while there were 18 polling places available in Fayette County’s municipal primary,11 —————— elderly affiant in the District Court testified: “I don’t trust [the absen- tee] system. Because a lot of soldiers vote like that and their votes wasn’t counted in the last election according to what I read, absentee.” App. 209 (deposition of David Harrison). It is one thing (and a commendable thing) for the State to make absentee voting available to the elderly and disabled; but it is quite another to suggest that, because the more convenient but less reliable absentee ballot is available, the State may freely deprive the elderly and disabled of the option of voting in person. 5 Under Indiana law, county executives must locate a polling place within five miles of the closest boundary of each voting precinct, and, with limited exceptions, no precinct may cover more than 1,200 active voters at the time it is established. See Brief for Respondents in No. 07–21, p. (citing –11–8–(b), –11–1.5–). The result is that the number of polling places tends to track the number of voting precincts in a county. In Henry County, for example, there are 2 active precincts, see n. infra, and 2 polling places have been approved for the 2008 elections, see n. 1, infra. See also Count of Active Precincts by County, online at http://www.in.gov/sos/pdfs/Precincts_by_County_and_State_020.pdf (all Internet materials as visited Apr. 21, 2008, and available in Clerk of Court’s case file). 7 See Marion County License Branches, http://www.in.gov/bmv/ 1.htm. 8 See Lake County, http://www.in.gov/bmv/0.htm. 9 See Allen County, http://www.in.gov/bmv/295.htm. 10 See Brown County, http://www.in.gov/bmv/02.htm. 11 See http://www.co.fayette.in.us/%20polling_locations_munic. CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting there was only 1 BMV license branch;12 and Henry County, with 2 polling places approved for 2008 elec- tions,1 has only 1 BMV office. The burden of traveling to a more distant BMV office rather than a conveniently located polling place is proba- bly serious for many of the individuals who lack photo identification.1 They almost certainly will not own cars, see Brief for Current and Former State Secretaries of State as Amici Curiae 11, and public transportation in Indiana is fairly limited. According to a report published by Indiana’s Department of Transportation in August 21 of Indiana’s 92 counties have no public transpor- tation system at all, and as of 2000, nearly 1 in every 10 —————— htm. 12 See Fayette County, http://www.in.gov/bmv/2.htm. 1 See News Release, Henry County, Indiana, Polling Places Approved for the 2008 Elections, http://www.henryco.net/cm/node/52. 1 The travel burdens might, in the future, be reduced to some extent by Indiana’s commendable “BMV2You” mobile license branch, which will travel across the State for an average of three days a week, and provide BMV services (including ID services). See http:// www.in.gov/bmv/55.htm. The program does not count in my analy- sis, however, because the program was only recently opened in August see Indiana BMV Opens License Branch at State Fair, http://www.in.gov/newsroom.htm?detailContent=9_1000.htm, and its long-term service schedule has yet to be determined. Indiana Public Transit: Annual Report p. 29, http:// www.in.gov/indot/files/INDOT_.pdf (hereinafter Annual Report). The 21 counties with no public transportation, according to the study, are: Adams, Blackford, Brown, Carroll, Clay, De Kalb, Gibson, Jennings, Lagrange, Parke, Perry, Posey, Putnam, Rush, Spencer, Steuben, Tipton, Vermillion, Warren, Warrick, and Whitley Counties. See A Website of the American Public Transportation Association, which compiles public transit information across the States, confirms that each of those 21 counties lacks any public transportation offerings, and in fact adds another 1 counties to this category: Boone, Decatur, Fayette, Fulton, Hancock, Hendricks, Huntington, Miami, Morgan, Noble, Pike, Shelby, and Wells. See Transit Systems in Indiana, http://www.publictransportation.org/systems/state.asp?state=IN#A. Cite as: 55 U. S. (2008) 7 SOUTER, J., dissenting voters lived within 1 of these 21 counties.1 Among the counties with some public system, 21 provide service only within certain cities, and 2 others restrict public trans- portation to regional county service, leaving only 18 that offer countywide public transportation, see n. State officials recognize the effect that travel costs can have on voter turnout, as in Marion County, for example, where efforts have been made to “establis[h] most polling places in locations even more convenient than the statu- tory minimum,” in order to “provid[e] for neighborhood voting.” Brief for Respondents in No. 07–21, pp. Although making voters travel farther than what is convenient for most and possible for some does not amount to a “severe” burden under that is no reason to ignore the burden altogether. It translates into an obvious economic cost (whether in work time lost, or getting and paying for transportation) that an Indiana voter must bear to obtain an For those voters who can afford the roundtrip, a second financial hurdle appears: in order to get photo identifica- tion for the first time, they need to present “ ‘a birth cer- tificate, a certificate of naturalization, U. S. veterans photo identification, U. S. military photo identification, or a U. S. passport.’ ” Ante, at 1, n. 1 (lead opinion) (quot- ing Ind. Admin. Code, tit. 10, (2008)). As the lead opinion says, the two most common of these documents come at a price: Indiana counties charge anywhere from $ to $12 for a birth certificate (and in some other States the fee is significantly higher), see ante, at 1, n. 1, and —————— The discrepancy appears to arise, in part, from the fact that the Ameri- can Public Transportation Association has not counted demand re- sponse systems that have been established in at least of these 1 counties. See Annual Report 50, 5, 9, 110, 1. 1 In 2000, approximately 9% of Indiana’s population lived within 1 of these 21 counties. See County and City Extra: Special Decennial Census Edition 19, 17 (D. Gaquin & K. DeBrandt eds. 2002). 8 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting that same price must usually be paid for a first-time pass- port, since a birth certificate is required to prove U. S. citizenship by birth. The total fees for a passport, more- over, are up to about $100.17 So most voters must pay at least one fee to get the ID necessary to cast a regular ballot.18 As with the travel costs, these fees are far from shocking on their face, but in the analysis it matters that both the travel costs and the fees are dispro- portionately heavy for, and thus disproportionately likely to deter, the poor, the old, and the immobile. B To be sure, Indiana has a provisional-ballot exception to the ID requirement for individuals the State considers “indigent”19 as well as those with religious objections to being photographed, see ante, at (lead opinion), and this sort of exception could in theory provide a way around the costs of procuring an But Indiana’s chosen excep- tion does not amount to much relief. —————— 17 See Department of State, How to Apply in Person for a Passport, http://travel.state.gov/passport/get/first/first_80.html; Department of State, Passport Fees (Feb. 1, 2008), http://travel.state.gov/passport/ get/fees/fees_87.html (total fees of $100 for a passport book and $5 for a passport card for individuals 1 and older). 18 The lead opinion notes that “the record does not provide even a rough estimate of how many indigent voters lack copies of their birth certificates.” Ante, at 19, n. 20. But the record discloses no reason to think that any appreciable number of poor voters would need birth certificates absent the Voter ID Law, and no reason to believe that poor people would spend money to get them if they did not need them. 19 To vote by provisional ballot, an individual must (at the circuit court clerk’s office) sign an affidavit affirming that she is “indigent” and “unable to obtain proof of identification without payment of a fee.” Ind. Code Ann. Indiana law does not define the key terms “indigent” or “unable,” but I will assume for present purposes that the Indiana Supreme Court will eventually construe these terms broadly, so that the income threshold for indigency is at least at the federal poverty level, and so that the exception covers even individuals who are facing only short-term financial difficulties. Cite as: 55 U. S. (2008) 9 SOUTER, J., dissenting The law allows these voters who lack the necessary ID to sign the poll book and cast a provisional ballot. See 58 F. Supp. 2d, at 78 ). As the lead opinion recognizes, though, ante, at that is only the first step; to have the provisional ballot counted, a voter must then appear in person before the circuit court clerk or county election board within 10 days of the election, to sign an affidavit attesting to indigency or religious objection to being pho- tographed (or to present an ID at that point),20 see 58 F. Supp. 2d, at 78. Unlike the trip to the BMV (which, assuming things go smoothly, needs to be made only once every four years for renewal of nondriver photo identifica- tion, see id.), this one must be taken every time a poor person or religious objector wishes to vote, because the State does not allow an affidavit to count in successive elections. And unlike the trip to the BMV (which at least has a handful of license branches in the more populous counties), a county has only one county seat. Forcing these people to travel to the county seat every time they try to vote is particularly onerous for the reason noted already, that most counties in Indiana either lack public transportation or offer only limited coverage. See at –7. That the need to travel to the county seat each election amounts to a high hurdle is shown in the results of the municipal elections in Marion County, to which Indiana’s Voter ID Law applied. Thirty-four provisional ballots were cast, but only two provisional voters made it —————— 20 Indiana law allows voters to cast a provisional ballot at the county clerk’s office starting 29 days prior to election day until noon of the day prior to election day, see –11.7–5–2.5, and this might enable some voters to make only one burdensome trip to the county seat. But for the voters who show up at the polls to vote and are there told that they lack the photo identification needed to cast a regular ballot, the Voter ID Law effectively forces them to make two trips. 10 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting to the County Clerk’s Office within the 10 days. See Brief for Respondents in No. 07–21, pp. 8–9. All of these aspiring voters appeared at the appropriate precinct; of them provided a signature, and every signature matched the one on file; and 2 of the 2 voters whose ballots were not counted had a history of voting in Marion County elections. See All of this suggests that provisional ballots do not obvi- ate the burdens of getting photo identification. And even if that were not so, the provisional-ballot option would be inadequate for a further reason: the indigency exception by definition offers no relief to those voters who do not consider themselves (or would not be considered) indigent but as a practical matter would find it hard, for nonfinan- cial reasons, to get the required ID (most obviously the disabled). C Indiana’s Voter ID Law thus threatens to impose serious burdens on the voting right, even if not “severe” ones, and the next question under is whether the number of individuals likely to be affected is significant as well. Record evidence and facts open to judicial notice answer yes. Although the District Court found that petitioners failed to offer any reliable empirical study of numbers of voters affected, see ante, at 17 (lead opinion),21 we may accept that court’s rough calculation that000 voting-age residents lack the kind of identification card required by Indiana’s law. See The District —————— 21 Much like petitioners’ statistician, the BMV “has not been able to determine the approximate number of Indiana residents of voting age who are without an Indiana driver’s license or identification card,” 58 F. Supp. 2d 775, but the BMV does acknowledge “that there are persons who do not currently have [the required ID] and who are, or who will be, eligible to vote at the next election,” Cite as: 55 U. S. (2008) 11 SOUTER, J., dissenting Court made that estimate by comparing BMV records reproduced in petitioners’ statistician’s report with U. S. Census Bureau figures for Indiana’s voting-age population in 200, see and the State does not argue that these raw data are unreliable. The State, in fact, shows no discomfort with the District Court’s finding that an “estimated000 individuals” (about 1% of the State’s voting-age population) lack a qualifying Brief for Respondents in No. 07–25, p. 25. If the State’s willingness to take that number is surpris- ing, it may be less so in light of the District Court’s obser- vation that “several factors suggest the percentage of Indiana’s voting age population with photo identification is actually lower than 99%,” n.22 a suggestion in line with national surveys showing —————— 22 The District Court explained: “[O]ur simple comparison of raw numbers does not take into account: individuals who have died but whose Indiana driver’s license or identi- fication cards have not expired; individuals who have moved outside the state and no longer consider themselves Indiana residents but who still retain a valid Indiana license or identification card; individuals who have moved into Indiana and now consider themselves Indiana residents but have not yet obtained an Indiana license or identification; and individuals, such as students, who are residing in Indiana tempo- rarily, are registered to vote in another state, but have obtained an Indiana license or identification.” The District Court also identified three factors that, in its view, might require deductions of the000 figure. First, the District Court noted that BMV records do not cover all forms of identification that may be used to vote under the Voter ID Law (e.g., federal photo identi- fication, such as a passport). This is a valid consideration, but is unlikely to overcome the additions that must be made for the various factors listed above. Second, the court noted that the BMV records do not account for the exceptions to the photo identification requirement (such as the indigency and absentee-ballot exceptions). This factor does not warrant a deduction of the000 number because, as I have argued, the indigency exception imposes serious burdens of its own, see at 8–10, and the absentee-ballot exception is not a wholly adequate substitute for voting in person, see n. Finally, the 12 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting roughly –10% of voting-age Americans without a state- issued photo-identification card. See Brief for Petitioners in No. 07–21, pp. 9–0, n. 17 (citing National Commis- sion on Election Reform, To Assure Pride and Confidence: Task Force Reports, ch. VI: Verification of Identity, p. (Aug. 2001), http://webstorage.mcpa.virginia.edu/com- misions/comm_2001_taskforce.pdf). We have been offered no reason to think that Indiana does a substantially better job of distributing IDs than other States.2 So a fair reading of the data supports the District Court’s finding that around000 Indiana residents lack the needed identification, and will bear the burdens the law imposes. To be sure, the000 figure has to be dis- counted to some extent, residents of certain nursing homes being exempted from the photo identification requirement. 58 F. Supp. 2d, at 78. But the State does not suggest that this narrow exception could possibly reduce000 to an insubstantial number.2 —————— District Court noted that many individuals are not registered to vote. For reasons I lay out in note 2, infra, I am not convinced that this fact is relevant at all. 2 Although the lead opinion expresses confidence that the percentage of voters without the necessary photo ID will steadily decrease, see ante, at n. and suggests that the number may already have dropped, see ante, at 18, n. 20, there is reason to be less sanguine. See ACLU Sues To Halt License Revocation, Fort Wayne J. Gazette, Feb. 9, 2008, p. C (“The American Civil Liberties Union is suing the state to prevent the possible revocation of up to 5,000 driver’s licenses that don’t match information in a Social Security database. Many of the mismatches were created by typographical errors or by people getting married and changing their last names, the [BMV] said last week when it announced it had sent warning letters to about 20,000 people in Indiana”); see also Dits, Court Date Set for Bid To Stop BMV, South Bend Tribune, Feb. 21, 2008; Who To Blame in Name Game? Many Caught in Name Game; Merging BMV, Social Security Databases Forcing Many To Hire Lawyers, The Post-Tribune, Jan. 8, 2008, p. A5; Snelling, Name Issue Blocks License, Merrillville Post-Tribune, Jan. 7, 2008, p. A. 2 The State does imply that we should further discount the000 Cite as: 55 U. S. (2008) 1 SOUTER, J., dissenting The upshot is this. Tens of thousands of voting-age residents lack the necessary photo identification. A large proportion of them are likely to be in bad shape economi- cally, see 72 F.d 99, (“No doubt most people who don’t have photo ID are low on the economic ladder”); 05 U.S. 1, 1 (“[W]e would ignore reality were we not to recognize that this system falls with unequal weight on voters accord- ing to their economic status”).25 The Voter ID Law places hurdles in the way of either getting an ID or of voting provisionally, and they translate into nontrivial economic costs. There is accordingly no reason to doubt that a sig- nificant number of state residents will be discouraged or —————— estimate to exclude citizens who are not registered to vote, or who are registered but not planning to vote. See Brief for Respondents in No. 07–25, p. 25; see also ante, at 17 (lead opinion) (“[T]he evidence in the record does not provide us with the number of registered voters without photo identification”). But that argument is flatly contradicted by this Court’s settled precedent. As our cases have recognized, disfranchise- ment is disfranchisement, whether or not the disfranchised voter would have voted if given the choice. That is why in Dunn v. Blumstein, 05 U.S. 0 the Court did not ask whether any significant number of individuals deprived of the right to vote by durational residence requirements would actually have chosen to vote. And in Harper v. Virginia Bd. of Elections, 8 U.S. (19), the Court did not pause to consider whether any of the qualified voters deterred by the $1.50 poll tax would have opted to vote if there had been no fee. Our cases make clear that the Constitution protects an individual’s ability to vote, not merely his decision to do so. 25 Studies in other States suggest that the burdens of an ID require- ment may also fall disproportionately upon racial minorities. See Overton, Voter Identification, 105 Mich. L. Rev. 1, 59 (“In 199, the U. S. Department of found that African-Americans in Louisiana were four to five times less likely than white residents to have government-sanctioned photo identification”); at 59–0 (describing June 2005 study by the Employment and Training Institute at the University of Wisconsin-Milwaukee, which found that while 17% of voting-age whites lacked a valid driver’s license, 55% of black males and 9% of black females were unlicensed, and % of Latino males and 59% of Latino females were similarly unlicensed). 1 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting disabled from voting. 58 F. Supp. 2d, at 82 (“We do not doubt that such individuals exist somewhere, even though Plaintiffs were unable to locate them”); 72 F. d, 52 (“No doubt there are at least a few [whom the law will deter from voting] in Indiana”); see also ante, at (lead opinion). Petitioners, to be sure, failed to nail down precisely how great the cohort of discouraged and totally deterred voters will be, but empirical precision beyond the foregoing num- bers has never been demanded for raising a voting-rights claim. Washington State Grange v. Washington State Republican Party, 552 U.S. (2008) (ROBERTS, C. J., concurring) (slip op., at ) (“Nothing in my analysis requires the parties to produce studies regarding voter perceptions on this score”); Dunn v. Blumstein, 05 U.S. 0, 5, n. 5 (“[I]t would be difficult to determine precisely how many would-be voters throughout the coun- try cannot vote because of durational residence require- ments”); at 1 (taking account of “the obvious likelihood” that candidate filing fees would “fall more heavily on the less affluent segment of the commu- nity, whose favorites may be unable to pay the large costs”). While of course it would greatly aid a plaintiff to establish his claims beyond mathematical doubt, he does enough to show that serious burdens are likely. Thus, petitioners’ case is clearly strong enough to prompt more than a cursory examination of the State’s asserted interests. And the fact that Indiana’s photo identification requirement is one of the most restrictive in the country, see Brief for Current and Former State Secre- taries of State as Amici Curiae –0 (compiling state voter-identification statutes); see also Brief for Texas et al. as Amici Curiae 10–1 (same),2 makes a critical examina- —————— 2 Unlike the Help America Vote Act of 2002, 11 Stat. 1, 2 U.S. C. et seq. (2000 ed., Supp. V), which generally requires Cite as: 55 U. S. (2008) SOUTER, J., dissenting tion of the State’s claims all the more in order. Ran- —————— proof of identification but allows for a variety of documents to qualify, see ante, at 8–9 (lead opinion), Indiana accepts only limited forms of federally issued or state-issued photo identification, see n. and does not allow individuals lacking the required identification to cast a regular ballot at the polls. Only one other State, Georgia, currently restricts voters to the narrow forms of government-issued photo identi- fication. See –2–17 But a birth certificate is not needed to get a Georgia voter identification card. See –2–17.1 ; Ga. Comp. Rules & Regs., Rule 18–1–20.01 Missouri’s Legislature passed a restrictive photo identification law comparable to Indiana’s, but the Missouri Supreme Court struck it down as violative of the state constitution. Weinschenk v. State, 20 S.W.d 201 Florida requires photo identification, but permits the use of several forms, including a debit or credit card; military identification; student identification; retirement center identi- fication; neighborhood center identification; and public assistance identification. See Fla. Stat. Ann. §101.0(1) (West Supp. 2008). Moreover, a Florida voter who lacks photo identification may cast a provisional ballot, and that ballot will be counted so long as the signa- ture on the ballot matches the one on the voter’s registration. §§101.0(2), 101.08. All other States that require identification at the polls either allow voters to identify themselves using a variety of documents, see Ala. Code §17–9–0 ; Alaska Stat. §.225 ; Ariz. Rev. Stat. Ann. 579 ; –5–05(a)(8) ; Colo. Rev. Stat. §1–10(19.5), 1–7–110 ; Ky. Rev. Stat. Ann. (Lexis 200); Mont. Code Ann. 1–11 ; N. M. Stat. Ann. §1–2, 1–12–7.1, as amended by 2008 N. M. Laws ch. 59; 12–8 ; Ohio Rev. Code Ann. §§50.1(B)(1), 505.18 ; S. C. Code Ann. 7–1–710 ; –7–112 (200); Texas Elec. Code Ann. §§.001–.009 ; §.0101 ; Wash. Rev. Code §29A.205 or allow voters lacking identification to cast a regular ballot upon signing an affidavit (or providing additional identifying information), see – 21 ; Del. Code Ann., Tit. §97 ; – 1 ( Cum. Supp.); La. Rev. Stat. Ann. §18:52 (West Supp. 2008); Mich. Comp. Laws Ann. §18.52(1) ; N. D. Cent. Code Ann. §1.1–05–07 ; S. D. Codified Laws 18–.1, 12–18–.2 (200); Va. Code Ann. §2.2– 1 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting 58 U.S. 20, 25 (citing as a “danger sig[n]” that “contribution limits are substantially lower than comparable limits in other States,” and concluding that “[w]e consequently must examine the record independently and carefully to deter- mine whether [the] limits are ‘closely drawn’ to match the State’s interests”); at 28, 288 (finding that deference was appropriate on the reasoning that limits were “consistent with limits set by the legisla- tures of many other States, all of them with populations larger than Vermont’s,” and that “[t]he Legislature of Vermont evidently tried to account for the realities of campaigning in Vermont”). III Because the lead opinion finds only “limited” burdens on the right to vote, see ante, at 18, it avoids a hard look at the State’s claimed interests. See ante, at 7–1. But having found the Voter ID Law burdens far from trivial, I have to make a rigorous assessment of “ ‘the precise inter- ests put forward by the State as justifications for the burden imposed by its rule,’ [and] ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” (quoting Anderson, 0 U. S., at ). As this quotation from indicates, the interests claimed to justify the regulatory scheme are subject to discount in two distinct ways. First, the generalities raised by the State have to be shaved down to the precise “aspect[s of claimed interests] addressed by the law at issue.” California Democratic Party v. Jones, 50 U.S. 57, 58 (emphasis omitted); see (scrutiny of state interests “is not to be made in the abstract, by ask- ing whether [the interests] are highly significant values; but rather by asking whether the aspect of [those inter- ests] addressed by the law at issue is highly significant” Cite as: 55 U. S. (2008) 17 SOUTER, J., dissenting (emphasis in original)). And even if the State can show particularized interests addressed by the law, those inter- ests are subject to further discount depending on “the extent to which [they] make it necessary to burden the plaintiff’s rights.” at (internal quota- tion marks omitted). As the lead opinion sees it, the State has offered four related concerns that suffice to justify the Voter ID Law: modernizing election procedures, combating voter fraud, addressing the consequences of the State’s bloated voter rolls, and protecting public confidence in the integrity of the electoral process. See ante, at 7–1. On closer look, however, it appears that the first two (which are really just one) can claim modest weight at best, and the latter two if anything weaken the State’s case. A The lead opinion’s discussion of the State’s reasons begins with the State’s asserted interests in “election modernization,” ante, at 8–10, and in combating voter fraud, see ante, at 11–1. Although these are given sepa- rate headings, any line drawn between them is unconvinc- ing; as I understand it, the “effort to modernize elections,” Brief for Respondents in No. 07–25, p. 12, is not for mod- ernity’s sake, but to reach certain practical (or political) objectives. In any event, if a proposed modernization were in fact aimless, if it were put forward as change for change’s sake, a State could not justify any appreciable burden on the right to vote that might ensue; useless technology has no constitutional value. And in fact that is not the case here. The State says that it adopted the ID law principally to combat voter fraud, and it is this claim, —————— See generally R. Saltman, The History and Politics of Voting Tech- nology: In Quest of Integrity and Public Confidence (tracing the history of changes in methods of voting in the United States, and the social and political considerations behind them). 18 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting not the slogan of “election modernization,” that warrants attention. 1 There is no denying the abstract importance, the com- pelling nature, of combating voter fraud. See Purcell, 59 U. S., at (acknowledging “the State’s compelling interest in preventing voter fraud”); 89 U.S. 21, 21 (“A State indisputably has a compelling interest in preserving the integrity of its election process”). But it takes several steps to get beyond the level of abstraction here. To begin with, requiring a voter to show photo identifi- cation before casting a regular ballot addresses only one form of voter fraud: in-person voter impersonation. The photo ID requirement leaves untouched the problems of absentee-ballot fraud, which (unlike in-person voter im- personation) is a documented problem in Indiana, see 58 F. Supp. 2d, at 79; of registered voters voting more than once (but maintaining their own identities) in different counties or in different States; of felons and other disquali- fied individuals voting in their own names; of vote buying; or, for that matter, of ballot-stuffing, ballot miscounting, voter intimidation, or any other type of corruption on the part of officials administering elections. See Brief for Brennan Center for et al. as Amici Curiae 7. And even the State’s interest in deterring a voter from showing up at the polls and claiming to be someone he is not must, in turn, be discounted for the fact that the State has not come across a single instance of in-person voter impersonation fraud in all of Indiana’s history. See 58 F. Supp. 2d, at 792–79; see also ante, at 11–1 (lead opinion). Neither the District Court nor the Indiana Gen- eral Assembly that passed the Voter ID Law was given any evidence whatsoever of in-person voter impersonation fraud in the State. See 58 F. Supp. 2d, at 79. This Cite as: 55 U. S. (2008) 19 SOUTER, J., dissenting absence of support is consistent with the experience of several veteran poll watchers in Indiana, each of whom submitted testimony in the District Court that he had never witnessed an instance of attempted voter imper- sonation fraud at the polls. It is also consistent with the dearth of evidence of in-person voter impersonation in any other part of the country. See ante, at 11, n. 11 (lead opinion) (conceding that there are at most “scattered instances of in-person voter fraud”); see also Brief for Brennan Center for at 11–25, 25 (demon- strating that “the national evidence—including the very evidence relied on by the courts below—suggests that the type of voting fraud that may be remedied by a photo ID requirement is virtually nonexistent: the ‘problem’ of voter impersonation is not a real problem at all”).28 The State responds to the want of evidence with the assertion that in-person voter impersonation fraud is hard to detect. But this is like saying the “man who wasn’t there” is hard to spot,29 and to know whether difficulty in detection accounts for the lack of evidence one at least has to ask whether in-person voter impersonation is (or would be) relatively harder to ferret out than other kinds of fraud (e.g., by absentee ballot) which the State has had no trou- ble documenting. The answer seems to be no; there is reason to think that “impersonation of voters is the most likely type of fraud to be discovered.” U. S. Election Assistance Commission, Election Crimes: An Initial Re- —————— 28 The lack of evidence of in-person voter impersonation fraud is not for failure to search. See, e.g., Lipton & Urbina, In 5-Year Effort, Scant Evidence of Voter Fraud, N. Y. Times, Apr. 12, p. A1 (“Five years after the Bush Administration began a crackdown on voter fraud, the Department has turned up virtually no evidence of any organ- ized effort to skew federal elections, according to court records and interviews”). 29 “As I was going up the stair / I met a man who wasn’t there.” H. Mearns, Antigonish, reprinted in Best Remembered Poems 107 20 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting view and Recommendations for Future Study 9 http://www.eac.gov/clearinghouse/docs/reports-and- surveys-electioncrimes.pdf/attachment_download/file (hereinafter EAC Report). This is in part because an individual who impersonates another at the polls commits his fraud in the open, under the scrutiny of local poll workers who may well recognize a fraudulent voter when they hear who he claims to be. See Brief for Respondents in No. 07–21, p. )). The relative ease of discovering in-person voter imper- sonation is also owing to the odds that any such fraud will be committed by “organized groups such as campaigns or political parties” rather than by individuals acting alone. L. Minnite & D. Securing the Vote: An Analysis of Election Fraud 1 (200). It simply is not worth it for individuals acting alone to commit in-person voter imper- sonation, which is relatively ineffectual for the foolish few who may commit it. If an imposter gets caught, he is subject to severe criminal penalties. See, e.g., Ind. Code Ann. §–1–2–9 (making it a felony “knowingly [to] vot[e] or offe[r] to vote at an election when the person is not registered or authorized to vote”); §–1–2–11 (with cer- tain exceptions, “a person who knowingly votes or offers to vote in a precinct except the one in which the person is registered and resides” commits a felony); §–1–2–12(1) (making it a felony “knowingly [to] vot[e] or mak[e] appli- cation to vote in an election in a name other than the person’s own”); §–1–2–12(2) (a person who, “having voted once at an election, knowingly applies to vote at the same election in the person’s own name or any other name” commits a felony); see also 2 U.S. C. §197i(e)(1) Cite as: 55 U. S. (2008) 21 SOUTER, J., dissenting (any individual who “votes more than once” in certain federal elections “shall be fined not more than $10,000 or imprisoned not more than five years, or both”). And even if he succeeds, the imposter gains nothing more than one additional vote for his candidate. See EAC Report 9 (in- person voter impersonation “is an inefficient method of influencing an election”); J. Levitt, The Truth about Voter Fraud 7 (“[F]raud by individual voters is a singu- larly foolish and ineffective way to attempt to win an election. Each act of voter fraud in connection with a federal election risks five years in prison and a $10,000 fine, in addition to any state penalties. In return, it yields at most one incremental vote. That single extra vote is simply not worth the price” (footnote omitted)); 72 F. d, 51 (“[A] vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote” (emphasis in original)). In sum, fraud by individuals acting alone, however difficult to detect, is unlikely. And while there may be greater incentives for organized groups to engage in broad- gauged in-person voter impersonation fraud, see Minnite & it is also far more difficult to conceal larger enterprises of this sort. The State’s argu- ment about the difficulty of detecting the fraud lacks real force. 2 Nothing else the State has to say does much to bolster its case. The State argues, for example, that even without evidence of in-person voter impersonation in Indiana, it is enough for the State to show that “opportunities [for such fraud] are transparently obvious in elections without identification checks,” Brief for Respondents in No. 07–25, p. 5. Of course they are, but Indiana elections before the Voter ID Law were not run “without identification checks”; 22 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting on the contrary, as the Marion County Election Board informs us, “[t]ime-tested systems were in place to detect in-person voter impersonation fraud before the challenged statute was enacted,” Brief for Respondents in No. 07–21, p. These included hiring poll workers who were pre- cinct residents familiar with the neighborhood, and mak- ing signature comparisons, each effort being supported by the criminal provisions mentioned before. at –8. For that matter, the deterrence argument can do only so much work, since photo identification is itself hardly a failsafe against impersonation. Indiana knows this, and that is why in the State began to issue redesigned driver’s licenses with digital watermarking.0 The State has made this shift precisely because, in the words of its BMV, “visual inspection is not adequate to determine the authenticity” of driver’s licenses. See Indiana BMV, su- pra, n. 0. Indeed, the BMV explains that the digital watermarks (which can be scanned using equipment that, so far, Indiana does not use at polling places) is needed to “tak[e] the guesswork out of inspection.” 1 So, at least until polling places have the machines and special software to scan the new driver’s licenses, and until all the licenses with the older designs expire (the licenses issued after but before the redesigning are good until 2012, see 58 F. Supp. 2d, at ), Indiana’s law does no more than assure that any in-person voter fraud will take place with fake IDs, not attempted signature forgery. —————— 0 See Indiana BMV, Digital Drivers License: Frequently Asked Ques- tions, “What is a digital watermark and why is Indiana incorporating it into their driver license?”, http://www.in.gov/bmv/82.htm. 1 In the words of Indiana’s Governor, Mitch Daniels: “ ‘Not very long ago, Indiana driver’s licenses were a late-night talk show joke [because of] the ease of their fraudulent issuance and also their duplication [The new design] will make particularly their duplication dramatically more difficult.’ ” Udell, Digital Driver’s Licenses Designed To Stem ID Theft, Evansville Courier, June 7, p. B. Cite as: 55 U. S. (2008) 2 SOUTER, J., dissenting Despite all this, I will readily stipulate that a State has an interest in responding to the risk (however small) of in- person voter impersonation. See ante, at 12 (lead opinion). I reach this conclusion, like others accepted by the Court, because “ ‘[w]here a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empiri- cal legislative judgments.’ ” 58 U. S., at 285 (BREYER, J., concurring)). Weight is owed to the legislative judgment as such. But the ultimate valuation of the particular interest a State asserts has to take account of evidence against it as well as legislative judgments for it (certainly when the law is one of the most restrictive of its kind, see n. 2, and on this record it would be unreasonable to accord this assumed state interest more than very modest significance.2 The antifraud rationale is open to skepticism on one further ground, what spoke of as an assessment of the degree of necessity for the State’s particular course of action. Two points deserve attention, the first being that —————— 2 On such flimsy evidence of fraud, it would also ignore the lessons of history to grant the State’s interest more than modest weight, as the interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules. See F. Ogden, The Poll Tax in the South 9 (1958) (“In Arkansas and Texas, the argument was fre- quently presented that a poll tax payment prerequisite would purify elections by preventing repeaters and floaters from voting”); see also Brief for Historians and Other Scholars as Amici Curiae – (detailing abuses); R. Hayduk, Gatekeepers to the Franchise: Shaping Election Administration in New York (2005) (“In both historical and contem- porary contexts certain groups have had an interest in alleging fraud and thereby shaping electoral rules and practices in a restrictive direction, and other groups have had an opposite interest”). 2 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting the State has not even tried to justify its decision to im- plement the photo identification requirement immediately on passage of the new law. A phase-in period would have given the State time to distribute its newly designed li- censes, and to make a genuine effort to get them to indi- viduals in need, and a period for transition is exactly what the Commission on Federal Election Reform, headed by former President Carter and former Secretary of State Baker, recommended in its report. See Building Confi- dence in U. S. Elections (Sept. 2005), App. 1, 10 (hereinafter Carter-Baker Report) (“For the next two federal elections, until January 1, 2010, in states that require voters to present ID at the polls, voters who fail to do so should nonetheless be allowed to cast a provisional ballot, and their ballot would count if their signature is verified”). During this phase-in period, the report said, States would need to make “efforts to ensure that all voters are provided convenient opportunities to obtain” the required identification. at 11. The former President and former Secretary of State explained this recommenda- tion in an op-ed essay: “Yes, we are concerned about the approximately 12 percent of citizens who lack a driver’s license. So we proposed that states finally assume the responsibility to seek out citizens to both register voters and provide them with free ID’s that meet federal standards. States should open new offices, use social service agencies and deploy mobile offices to register voters. By connecting ID’s to registration, voting participa- tion will be expanded.” Carter & Baker, Voting Re- form is in the Cards, N. Y. Times, Sept. 2, 2005, p. A19. Although Indiana claims to have adopted its ID require- ment relying partly on the Carter-Baker Report, see Brief for Respondents in No. 07–25, pp. 5, 1, 9; see also ante, Cite as: 55 U. S. (2008) 25 SOUTER, J., dissenting at 10 (lead opinion), the State conspicuously rejected the Report’s phase-in recommendation aimed at reducing the burdens on the right to vote, and just as conspicuously fails even to try to explain why. What is left of the State’s claim must be downgraded further for one final reason: regardless of the interest the State may have in adopting a photo identification re- quirement as a general matter, that interest in no way necessitates the particular burdens the Voter ID Law imposes on poor people and religious objectors. Individu- als unable to get photo identification are forced to travel to the county seat every time they wish to exercise the fran- chise, and they have to get there within 10 days of the election. See at 8–10. Nothing about the State’s interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places. In briefing this Court, the State responds by pointing to an interest in keeping lines at polling places short. See Brief for Respondents in No. 07–25, p. 58. It warns that “[i]f election workers—a scarce resource in any election— must attend to the details of validating provisional ballots, voters may have to wait longer to vote,” and it assures us that “[n]othing deters voting so much as long lines at the polls.” But this argument fails on its own terms, for whatever might be the number of individuals casting a provisional ballot, the State could simply allow voters to sign the indigency affidavit at the polls subject to review there after the election. After all, the Voter ID Law already requires voters lacking photo identification to —————— Florida has accommodated voters in this manner. In Florida a voter who casts a provisional ballot may have that vote counted if the voter’s signature on the provisional-ballot certification matches the signature on the voter’s registration. See Fla. Stat. Ann. §§101.0, 101.08. The voter is not required to make a second trip to have her provisional ballot counted. 2 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting sign, at the polling site, an affidavit attesting to proper registration. See 58 F. Supp. 2d, at 78. Indeed, the State’s argument more than fails; it back- fires, in implicitly conceding that a not-insignificant num- ber of individuals will need to rely on the burdensome provisional-ballot mechanism. What is more, as the Dis- trict Court found, the Voter ID Law itself actually in- creases the likelihood of delay at the polls. Since any minor discrepancy between a voter’s photo identification card and the registration information may lead to a chal- lenge, “the opportunities for presenting challenges ha[ve] increased as a result of the photo identification require- ments.” at ; 72 F. d, 55 (Evans, J., dis- senting) (“The potential for mischief with this law is obvi- ous. Does the name on the ID ‘conform’ to the name on the voter registration list? If the last name of a newly married woman is on the ID but her maiden name is on the registration list, does it conform? If a name is mis- spelled on one—Schmit versus Schmitt—does it conform? If a ‘Terence’ appears on one and a shortened ‘Terry’ on the other, does it conform?”). B The State’s asserted interests in modernizing elections and combating fraud are decidedly modest; at best, they fail to offset the clear inference that thousands of Indiana citizens will be discouraged from voting. The two remain- ing justifications, meanwhile, actually weaken the State’s case. The lead opinion agrees with the State that “the infla- tion of its voter rolls is further support for its enactment of” the Voter ID Law. Ante, at 12. This is a puzzling conclusion, given the fact, which the lead opinion notes, that the National Government filed a complaint against Indiana, containing this allegation: “Indiana has failed to conduct a general program that Cite as: 55 U. S. (2008) SOUTER, J., dissenting makes a reasonable effort to identify and remove in- eligible voters from the State’s registration list; has failed to remove such ineligible voters; and has failed to engage in oversight actions sufficient to ensure that local election jurisdictions identify and remove such ineligible voters.” App. 09, 12. The Federal Government and the State agreed to settle the case, and a consent decree and order have been en- tered, see ante, at 12–1, requiring Indiana to fulfill its list-maintenance obligations under of the National Voter Registration Act of 199, 2 U.S. C. §197gg–. How any of this can justify restrictions on the right to vote is difficult to say. The State is simply trying to take advantage of its own wrong: if it is true that the State’s fear of in-person voter impersonation fraud arises from its bloated voter checklist, the answer to the problem is in the State’s own hands. The claim that the State has an inter- est in addressing a symptom of the problem (alleged im- personation) rather than the problem itself (the negli- gently maintained bloated rolls) is thus self-defeating; it shows that the State has no justifiable need to burden the right to vote as it does, and it suggests that the State is not as serious about combating fraud as it claims to be. The State’s final justification, its interest in safeguard- ing voter confidence, similarly collapses. The problem with claiming this interest lies in its connection to the bloated voter rolls; the State has come up with nothing to suggest that its citizens doubt the integrity of the State’s —————— The voting-rolls argument also suggests that it would not be so difficult to detect in-person voter fraud after all. If it is true that practitioners of fraud are most likely to vote in the name of registered voters whom they know to have died or left the jurisdiction, then Indiana could simply audit its voting records to examine whether, and how often, in-person votes were cast using these invalid registrations. 28 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting electoral process, except its own failure to maintain its rolls. The answer to this problem is not to burden the right to vote, but to end the official negligence. It should go without saying that none of this is to deny States’ legitimate interest in safeguarding public confi- dence. The Court has, for example, recognized that fight- ing perceptions of political corruption stemming from large political contributions is a legitimate and substantial state interest, underlying not only campaign finance laws, but bribery and antigratuity statutes as well. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 77, 90 But the force of the interest depends on the facts (or plausibility of the assumptions) said to justify invoking it. See at 91 (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”). While we found in Nixon that “there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters,” at 95, there is plenty of reason to be doubtful here, both about the reality and the perception. It is simply not plausible to assume here, with no evidence of in-person voter imper- sonation fraud in a State, and very little of it nationwide, that a public perception of such fraud is nevertheless “inherent” in an election system providing severe criminal penalties for fraud and mandating signature checks at the polls. at 90 (“[T]he perception of corruption [is] ‘inherent in a regime of large individual financial contri- butions’ to candidates for public office” (quoting Buckley v. Valeo, 2 U.S. 1, (197) ). C Without a shred of evidence that in-person voter imper- sonation is a problem in the State, much less a crisis, Cite as: 55 U. S. (2008) 29 SOUTER, J., dissenting Indiana has adopted one of the most restrictive photo identification requirements in the country. The State recognizes that tens of thousands of qualified voters lack the necessary federally issued or state-issued identifica- tion, but it insists on implementing the requirement im- mediately, without allowing a transition period for tar- geted efforts to distribute the required identification to individuals who need it. The State hardly even tries to explain its decision to force indigents or religious objectors to travel all the way to their county seats every time they wish to vote, and if there is any waning of confidence in the administration of elections it probably owes more to the State’s violation of federal election law than to any imposters at the polling places. It is impossible to say, on this record, that the State’s interest in adopting its sig- nally inhibiting photo identification requirement has been shown to outweigh the serious burdens it imposes on the right to vote. If more were needed to condemn this law, our own precedent would provide it, for the calculation revealed in the Indiana statute crosses a line when it targets the poor and the weak. 79 (“[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a par- ticular viewpoint, associational preference, or economic status”). If the Court’s decision in 8 U.S. (19), stands for anything, it is that being poor has nothing to do with being qualified to vote. Harper made clear that “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” at 8. The State’s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified economic 0 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting burdens uncomfortably close to the outright $1.50 fee we struck down 2 years ago. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deter- ring poorer residents from exercising the franchise. * * * The Indiana Voter ID Law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unrea- sonable and irrelevant burden on voters who are poor and old. I would vacate the judgment of the Seventh Circuit, and remand for further proceedings. Cite as: 55 U. S. (2008) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 07–21 and 07–25 WILLIAM CRAWFORD, ET AL., PETITIONERS 07–21 v. MARION COUNTY ELECTION BOARD ET AL. INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS 07–25 v. TODD ROKITA, INDIANA SECRETARY OF STATE, ET AL.

Justice Ginsburg

majority

Rivera v. Illinois

https://www.courtlistener.com/opinion/145895/rivera-v-illinois/

https://www.courtlistener.com/api/rest/v3/clusters/145895/

2008-036

This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory chal lenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction? Following a jury trial in an Illinois state court, defen dant-petitioner Michael Rivera was convicted of first degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court’s rejection of his peremptory challenge to venire member Deloris Go mez. Gomez sat on Rivera’s jury and indeed served as the jury’s foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court. The right to exercise peremptory challenges in state 2 RIVERA v. ILLINOIS Opinion of the Court court is determined by state law. This Court has “long recognized” that “peremptory challenges are not of federal constitutional dimension.” United States v. Martinez- Salazar, 528 U.S. 304, 311 (2000). States may withhold peremptory challenges “altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.” Georgia v. McCollum, 505 U.S. 42, 57 (1992). Just as state law controls the existence and exercise of peremp tory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court’s determination that, in the circumstances Rivera’s case presents, the trial court’s error did not warrant reversal of his conviction. I Rivera was charged with first-degree murder in the Circuit Court of Cook County, Illinois. The State alleged that Rivera, who is Hispanic, shot and killed Marcus Lee, a 16-year-old African-American, after mistaking Lee for a member of a rival gang. During jury selection, Rivera’s counsel questioned pro spective juror Deloris Gomez, a business office supervisor at Cook County Hospital’s outpatient orthopedic clinic. App. 32–33. Gomez stated that she sometimes interacted with patients during the check-in process and acknowl edged that Cook County Hospital treats many gunshot victims. She maintained, however, that her work experi ence would not affect her ability to be impartial. After questioning Gomez, Rivera’s counsel sought to use a per emptory challenge to excuse her. Id., at 33. At that point in the jury’s selection, Rivera had already used three peremptory challenges. Two of the three were exercised against women; one of the two women thus eliminated was African-American. Illinois law affords each side seven peremptory challenges. See Ill. Sup. Ct. Rule 434(d) (West Cite as: 556 U. S. ____ (2009) 3 Opinion of the Court 2006). Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez. App. 34–36. Under Batson v. Kentucky, 476 U.S. 79 (1986), and later decisions building upon Batson, parties are constitution ally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex. With out specifying the type of discrimination he suspected or the reasons for his concern, the judge directed Rivera’s counsel to state his reasons for excusing Gomez. Counsel responded, first, that Gomez saw victims of violent crime on a daily basis. Counsel next added that he was “pulled in two different ways” because Gomez had “some kind of Hispanic connection given her name.” App. 34. At that point, the judge interjected that Gomez “appears to be an African American”—the second “African American female” the defense had struck. Id., at 34–35. Dissatisfied with counsel’s proffered reasons, the judge denied the challenge to Gomez, but agreed to allow counsel to question Gomez further. After asking Gomez additional questions about her work at the hospital, Rivera’s counsel renewed his challenge. Counsel observed, outside the jury’s presence, that most of the jurors already seated were women. Counsel said he hoped to “get some impact from possibly other men in the case.” Id., at 39. The court reaffirmed its earlier ruling, and Gomez was seated on the jury. Rivera’s case proceeded to trial. The jury, with Gomez as its foreperson, found Rivera guilty of first-degree mur der. A divided panel of the Appellate Court of Illinois rejected Rivera’s challenge to the trial judge’s Batson ruling and affirmed his conviction. 348 Ill. App. 3d 168, 810 N.E.2d 129 (2004). The Supreme Court of Illinois accepted Rivera’s petition for leave to appeal and remanded for further proceedings. 4 RIVERA v. ILLINOIS Opinion of the Court 221 Ill. 2d 481, 852 N.E.2d 771 (2006). A trial judge, the court held, may raise a Batson issue sua sponte only when there is a prima facie case of discrimination. Concluding that the record was insufficient to evaluate the existence of a prima facie case, the court instructed the trial judge to articulate the bases for his Batson ruling and, in particu lar, to clarify whether the alleged discrimination was on the basis of race, sex, or both. 221 Ill. 2d, at 515–516, 852 N. E. 2d, at 791. On remand, the trial judge stated that prima facie evidence of sex discrimination—namely, counsel’s two prior challenges to women and “the nature of [counsel’s] questions”—had prompted him to raise the Batson issue. App. 136. Counsel’s stated reasons for challenging Gomez, the judge reported, convinced him that that “there had been a purposeful discrimination against Mrs. Gomez because of her gender.” Id., at 137. The case then returned to the Illinois Supreme Court. Although that court disagreed with the trial judge’s as sessment, it affirmed Rivera’s conviction. 227 Ill. 2d 1, 879 N.E.2d 876 (2007). The Illinois High Court con cluded “that the record fails to support a prima facie case of discrimination of any kind.” Id., at 15, 879 N.E. 2d, at 884. Accordingly, the court determined, the trial judge erred, first in demanding an explanation from Rivera’s counsel, and next, in denying Rivera’s peremptory chal lenge of Gomez. Ibid. Even so, the Illinois Supreme Court rejected Rivera’s ultimate argument that the improper seating of Gomez ranked as “reversible error without a showing of preju dice.” Id., at 16, 879 N.E. 2d, at 885 (quoting Swain v. Alabama, 380 U.S. 202, 219 (1965)). Citing this Court’s guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory chal lenges.” 227 Ill. 2d, at 17, 879 N.E. 2d, at 885 (quoting Batson, 476 U.S., at 91). Although “peremptory chal Cite as: 556 U. S. ____ (2009) 5 Opinion of the Court lenges are ‘one means of assuring the selection of a quali fied and unbiased jury,’ ” the court explained, they are not “indispensable to a fair trial.” 227 Ill. 2d, at 16, 879 N.E. 2d, at 885 (quoting Batson, 476 U.S., at 91). Accordingly, the court held, the denial of Rivera’s per emptory challenge did not qualify as a structural error requiring automatic reversal. See 227 Ill. 2d, at 19–20, 879 N.E. 2d, at 887 (citing Washington v. Recuenco, 548 U.S. 212, 218–219 (2006)). The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” 227 Ill. 2d, at 20, 879 N.E. 2d, at 887. In that regard, the court stressed, Rivera did “not suggest that Gomez was subject to excusal for cause.” Ibid. Relying on both federal and state precedents, the court proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” Id., at 21, 879 N.E. 2d, at 887 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). After reviewing the trial record, the court con cluded that Gomez’s presence on the jury did not prejudice Rivera because “any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.” 227 Ill. 2d, at 26, 879 N.E. 2d, at 890. Having held the error harmless beyond a reasonable doubt, the court added that it “need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances.” Id., at 27, 879 N.E. 2d, at 891. This comment, it appears, related to Rivera’s arguments that, even absent a free standing constitutional entitlement to peremptory chal lenges, the inclusion of Gomez on his jury violated his Fourteenth Amendment right to due process of law. We granted certiorari, 554 U. S. __ (2008), to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant’s conviction as a matter 6 RIVERA v. ILLINOIS Opinion of the Court of federal law. Compare Angus v. State, 695 N.W.2d 109, 118 (Minn. 2005) (applying automatic reversal rule); State v. Vreen, 143 Wash. 2d 923, 927–932, 26 P.3d 236, 238– 240 (2001) (same), with People v. Bell, 473 Mich. 275, 292– 299, 702 N.W.2d 128, 138–141 (2005) (rejecting auto matic reversal rule and looking to state law to determine the consequences of an erroneous denial of a peremptory challenge); 227 Ill. 2d., at 15–27, 879 N.E. 2d, at 884–891 (case below). We now affirm the judgment of the Supreme Court of Illinois. II The Due Process Clause of the Fourteenth Amendment, Rivera maintains, requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. Rivera recalls the ancient lineage of the peremptory chal lenge and observes that the challenge has long been lauded as a means to guard against latent bias and to secure “the constitutional end of an impartial jury and a fair trial.” McCollum, 505 U.S., at 57. When a trial court fails to dismiss a lawfully challenged juror, Rivera asserts, it commits structural error: the jury becomes an illegally constituted tribunal, and any verdict it renders is per se invalid. According to Rivera, this holds true even if the Constitution does not itself mandate peremptory chal lenges, because criminal defendants have a constitution ally protected liberty interest in their state-provided per emptory challenge rights. Cf. Evitts v. Lucey, 469 U.S. 387, 393 (1985) (although “the Constitution does not re quire States to grant appeals as of right to criminal defen dants,” States that provide such appeals “must comport with the demands of the Due Process and Equal Protection Clauses”). The improper seating of a juror, Rivera insists, is not amenable to harmless-error analysis because it is impossi ble to ascertain how a properly constituted jury—here, one Cite as: 556 U. S. ____ (2009) 7 Opinion of the Court without juror Gomez—would have decided his case. Thus, he urges, whatever the constitutional status of peremptory challenges, automatic reversal must be the rule as a mat ter of federal law. Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a per emptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. As Rivera acknowledges, Brief for Petitioner 38, this Court has consistently held that there is no freestanding constitutional right to peremptory challenges. See, e.g., Martinez-Salazar, 528 U.S., at 311. We have character ized peremptory challenges as “a creature of statute,” Ross v. Oklahoma, 487 U.S. 81, 89 (1988), and have made clear that a State may decline to offer them at all. McCollum, 505 U.S., at 57. See also Holland v. Illinois, 493 U.S. 474, 482 (1990) (dismissing the notion “that the require ment of an ‘impartial jury’ impliedly compels peremptory challenges”). When States provide peremptory challenges (as all do in some form), they confer a benefit “beyond the minimum requirements of fair [jury] selection,” Frazier v. United States, 335 U.S. 497, 506 (1948), and thus retain discretion to design and implement their own systems, Ross, 487 U.S., at 89.1 Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. “[A] mere error of state law,” we have noted, “is not a denial of due process.” —————— 1 See Dept. of Justice, Bureau of Justice Statistics, State Court Or ganization 2004, pp. 228–232 (2006) (Table 41), http://www.ojp.usdoj. gov/bjs/pub/pdf/sco04.pdf (as visited Mar. 27, 2009, and available in Clerk of Court’s case file) (detailing peremptory challenge rules by State). 8 RIVERA v. ILLINOIS Opinion of the Court Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982) (internal quotation marks omitted). See also Estelle v. McGuire, 502 U.S. 62, 67, 72–73 (1991). The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U.S. 554, 563–564 (1967). The trial judge’s refusal to excuse juror Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Our decision in Ross is instruc tive. Ross, a criminal defendant in Oklahoma, used a peremptory challenge to rectify the trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. The trial court’s error, we acknowledged, “may have resulted in a jury panel different from that which would otherwise have decided [Ross’s] case.” 487 U.S., at 87. But because no member of the jury as finally composed was removable for cause, we found no violation of Ross’s Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. Id., at 86–91. We encountered a similar situation in Martinez-Salazar and reached the same conclusion. Martinez-Salazar, who was tried in federal court, was entitled to exercise peremp tory challenges pursuant to Federal Rule of Criminal Procedure 24(b). His decision to use one of his peremptory challenges to cure the trial court’s erroneous denial of a for-cause challenge, we held, did not impair his rights under that Rule. “[A] principal reason for peremptories,” we explained, is “to help secure the constitutional guaran tee of trial by an impartial jury.” 528 U.S., at 316. Hav ing “received precisely what federal law provided,” and having been tried “by a jury on which no biased juror sat,” Martinez-Salazar could not “tenably assert any violation of his . . . right to due process.” Id., at 307, 317. Rivera’s efforts to distinguish Ross and Martinez Cite as: 556 U. S. ____ (2009) 9 Opinion of the Court Salazar are unavailing. First, Rivera observes, the defen dants in Ross and Martinez-Salazar did not challenge any of the jurors who were in fact seated. In contrast, Rivera attempted to exercise a peremptory challenge against a specific person—Gomez—whom he perceived to be unfa vorable to his cause. But, as Rivera recognizes, neither Gomez nor any other member of his jury was removable for cause. See Tr. of Oral Arg. 9. Thus, like the juries in Ross and Martinez-Salazar, Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel. Gomez, however, was not privy to the in camera discussions concerning Rivera’s attempt to exercise a peremptory strike against her. See, supra, at 3. We reject the notion that a juror is constitutionally dis qualified whenever she is aware that a party has chal lenged her. Were the rule otherwise, a party could cir cumvent Batson by insisting in open court that a trial court dismiss a juror even though the party’s peremptory challenge was discriminatory. Or a party could obtain a juror’s dismissal simply by making in her presence a baseless for-cause challenge. Due process does not require such counterintuitive results. Second, it is not constitutionally significant that the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. The defendants in Ross and Mar tinez-Salazar, Rivera emphasizes, were not denied their peremptory-challenge rights under applicable law—state law in Ross and the Federal Rules of Criminal Procedure in Martinez-Salazar. But as we have already explained, supra, at 7–8, errors of state law do not automatically become violations of due process. As in Ross and Marti nez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Martinez- Salazar, 528 U.S., at 316; Ross, 487 U.S., at 91, n. 5. 10 RIVERA v. ILLINOIS Opinion of the Court Rather, the trial judge’s conduct reflected a good-faith, if arguably overzealous, effort to enforce the antidiscrimina tion requirements of our Batson-related precedents. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant’s discriminatory use of peremptory challenges. The Four teenth Amendment does not compel such a tradeoff. Rivera insists that, even without a constitutional viola tion, the deprivation of a state-provided peremptory chal lenge requires reversal as a matter of federal law. We disagree. Rivera relies in part on Swain, 380 U.S. 202, which suggested that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” Id., at 219. We disavowed this statement in Martinez-Salazar, observing, albeit in dicta, “that the oft-quoted language in Swain was not only unnecessary to the decision in that case . . . but was founded on a series of our early cases decided long before the adoption of harmless-error review.” 528 U.S., at 317, n. 4. As our recent decisions make clear, we typi cally designate an error as “structural,” therefore “re quir[ing] automatic reversal,” only when “the error ‘neces sarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” Recuenco, 548 U.S., at 218–219 (quoting Neder, 527 U.S., at 9). The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we con front here, constitute an error of that character. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. In Bat son, for example, we held that the unlawful exclusion of jurors based on race requires reversal because it “violates a defendant’s right to equal protection,” “unconstitution ally discriminate[s] against the excluded juror,” and “un Cite as: 556 U. S. ____ (2009) 11 Opinion of the Court dermine[s] public confidence in the fairness of our system of justice.” 476 U.S., at 86, 87. Similarly, dismissal of a juror in violation of Witherspoon v. Illinois, 391 U.S. 510 (1968),2 we have held, is constitutional error that requires vacation of a death sentence. See Gray v. Mississippi, 481 U.S. 648 (1987). See also Gomez v. United States, 490 U.S. 858, 876 (1989) (“Among those basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.” (internal quotation marks omitted)). A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy. We have held the resulting judgment in such cases invalid as a matter of federal law. See, e.g., Nguyen v. United States, 539 U.S. 69 (2003); Wingo v. Wedding, 418 U.S. 461 (1974). Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a compe tent and unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law. In sum, Rivera received precisely what due process required: a fair trial before an impartial and properly —————— 2 Under Witherspoon v. Illinois, 391 U.S. 510 (1968), “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscien tious or religious scruples against its infliction.” Id., at 522. 12 RIVERA v. ILLINOIS Opinion of the Court instructed jury, which found him guilty of every element of the charged offense. * * * For the reasons stated, the judgment of the Supreme Court of Illinois is Affirmed

This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory chal lenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction? Following a jury trial in an Illinois state court, defen dant-petitioner Michael Rivera was convicted of first degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court’s rejection of his peremptory challenge to venire member Deloris Go mez. Gomez sat on Rivera’s jury and indeed served as the jury’s foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court. The right to exercise peremptory challenges in state 2 court is determined by state law. This Court has “long recognized” that “peremptory challenges are not of federal constitutional dimension.” United States may withhold peremptory challenges “altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.” Just as state law controls the existence and exercise of peremp tory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court’s determination that, in the circumstances Rivera’s case presents, the trial court’s error did not warrant reversal of his conviction. I Rivera was charged with first-degree murder in the Circuit Court of Cook County, Illinois. The State alleged that Rivera, who is Hispanic, shot and killed Marcus Lee, a -year-old African-American, after mistaking Lee for a member of a rival gang. During jury selection, Rivera’s counsel questioned pro spective juror Deloris Gomez, a business office supervisor at Cook County Hospital’s outpatient orthopedic clinic. App. 32–33. Gomez stated that she sometimes interacted with patients during the check-in process and acknowl edged that Cook County Hospital treats many gunshot victims. She maintained, however, that her work experi ence would not affect her ability to be impartial. After questioning Gomez, Rivera’s counsel sought to use a per emptory challenge to excuse her. At that point in the jury’s selection, Rivera had already used three peremptory challenges. Two of the three were exercised against women; one of the two women thus eliminated was African-American. Illinois law affords each side seven peremptory challenges. See Ill. Sup. Ct. Rule 434(d) (West Cite as: 556 U. S. (2009) 3 Opinion of the Court ). Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez. App. 34–36. Under and later decisions building upon parties are constitution ally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex. With out specifying the type of discrimination he suspected or the reasons for his concern, the judge directed Rivera’s counsel to state his reasons for excusing Gomez. Counsel responded, first, that Gomez saw victims of violent crime on a daily basis. Counsel next added that he was “pulled in two different ways” because Gomez had “some kind of Hispanic connection given her name.” App. 34. At that point, the judge interjected that Gomez “appears to be an African American”—the second “African American female” the defense had struck. 4–35. Dissatisfied with counsel’s proffered reasons, the judge denied the challenge to Gomez, but agreed to allow counsel to question Gomez further. After asking Gomez additional questions about her work at the hospital, Rivera’s counsel renewed his challenge. Counsel observed, outside the jury’s presence, that most of the jurors already seated were women. Counsel said he hoped to “get some impact from possibly other men in the case.” The court reaffirmed its earlier ruling, and Gomez was seated on the jury. Rivera’s case proceeded to trial. The jury, with Gomez as its foreperson, found Rivera guilty of first-degree mur der. A divided panel of the Appellate Court of Illinois rejected Rivera’s challenge to the trial judge’s ruling and affirmed his conviction. The Supreme Court of Illinois accepted Rivera’s petition for leave to appeal and remanded for further proceedings. 4 A trial judge, the court held, may raise a issue sua sponte only when there is a prima facie case of discrimination. Concluding that the record was insufficient to evaluate the existence of a prima facie case, the court instructed the trial judge to articulate the bases for his ruling and, in particu lar, to clarify whether the alleged discrimination was on the basis of race, sex, or –5, 852 N. E. 2d, at 791. On remand, the trial judge stated that prima facie evidence of sex discrimination—namely, counsel’s two prior challenges to women and “the nature of [counsel’s] questions”—had prompted him to raise the issue. App. 136. Counsel’s stated reasons for challenging Gomez, the judge reported, convinced him that that “there had been a purposeful discrimination against Mrs. Gomez because of her gender.” The case then returned to the Illinois Supreme Court. Although that court disagreed with the trial judge’s as sessment, it affirmed Rivera’s conviction. The Illinois High Court con cluded “that the record fails to support a prima facie case of discrimination of any kind.” 879 N.E. 2d, at 884. Accordingly, the court determined, the trial judge erred, first in demanding an explanation from Rivera’s counsel, and next, in denying Rivera’s peremptory chal lenge of Gomez. Even so, the Illinois Supreme Court rejected Rivera’s ultimate argument that the improper seating of Gomez ranked as “reversible error without a showing of preju dice.” ). Citing this Court’s guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory chal lenges.” (quoting ). Although “peremptory chal Cite as: 556 U. S. (2009) 5 Opinion of the Court lenges are ‘one means of assuring the selection of a quali fied and unbiased jury,’ ” the court explained, they are not “indispensable to a fair trial.” 2 Ill. 2d, 879 N.E. 2d, at 885 (quoting ). Accordingly, the court held, the denial of Rivera’s per emptory challenge did not qualify as a structural error requiring automatic reversal. See –20, ). The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” In that regard, the court stressed, Rivera did “not suggest that Gomez was subject to excusal for cause.” Relying on both federal and state precedents, the court proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” 879 N.E. 2d, at 887 (quoting (1999)). After reviewing the trial record, the court con cluded that Gomez’s presence on the jury did not prejudice Rivera because “any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.” Having held the error harmless beyond a reasonable doubt, the court added that it “need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances.” at This comment, it appears, related to Rivera’s arguments that, even absent a free standing constitutional entitlement to peremptory chal lenges, the inclusion of Gomez on his jury violated his Fourteenth Amendment right to due process of law. We granted certiorari, 554 U. S. (2008), to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant’s conviction as a matter 6 of federal law. Compare 1 (applying automatic reversal rule); State v. Vreen, 9–932, 238– 240 (2001) (same), with 473 Mich. 5, 292– 299, (rejecting auto matic reversal rule and looking to state law to determine the consequences of an erroneous denial of a peremptory challenge); 2 Ill. 2d., –, –1 (case below). We now affirm the judgment of the Supreme Court of Illinois. II The Due Process Clause of the Fourteenth Amendment, Rivera maintains, requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. Rivera recalls the ancient lineage of the peremptory chal lenge and observes that the challenge has long been lauded as a means to guard against latent bias and to secure “the constitutional end of an impartial jury and a fair trial.” 505 U.S., at When a trial court fails to dismiss a lawfully challenged juror, Rivera asserts, it commits structural error: the jury becomes an illegally constituted tribunal, and any verdict it renders is per se invalid. According to Rivera, this holds true even if the Constitution does not itself mandate peremptory chal lenges, because criminal defendants have a constitution ally protected liberty interest in their state-provided per emptory challenge rights. Cf. Evitts v. Lucey, 469 U.S. 387, 393 (1985) (although “the Constitution does not re quire States to grant appeals as of right to criminal defen dants,” States that provide such appeals “must comport with the demands of the Due Process and Equal Protection Clauses”). The improper seating of a juror, Rivera insists, is not amenable to harmless-error analysis because it is impossi ble to ascertain how a properly constituted jury—here, one Cite as: 556 U. S. (2009) 7 Opinion of the Court without juror Gomez—would have decided his case. Thus, he urges, whatever the constitutional status of peremptory challenges, automatic reversal must be the rule as a mat ter of federal law. Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a per emptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. As Rivera acknowledges, Brief for Petitioner 38, this Court has consistently held that there is no freestanding constitutional right to peremptory challenges. See, e.g., 528 U.S., at We have character ized peremptory challenges as “a creature of statute,” v. Oklahoma, and have made clear that a State may decline to offer them at all. 505 U.S., at See also Holland v. Illinois, 493 U.S. 474, 482 (1990) (dismissing the notion “that the require ment of an ‘impartial jury’ impliedly compels peremptory challenges”). When States provide peremptory challenges (as all do in some form), they confer a benefit “beyond the minimum requirements of fair [jury] selection,” Frazier v. United States, and thus retain discretion to design and implement their own systems, 487 U.S., at1 Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. “[A] mere error of state law,” we have noted, “is not a denial of due process.” —————— 1 See Dept. of Justice, Bureau of Justice Statistics, State Court Or ganization pp. 228–232 (Table 41), http://www.ojp.usdoj. gov/bjs/pub/pdf/sco04.pdf (as visited Mar. 2009, and available in Clerk of Court’s case file) (detailing peremptory challenge rules by State). 8 (internal quotation marks omitted). See also The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” (19). The trial judge’s refusal to excuse juror Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Our decision in is instruc tive. a criminal defendant in Oklahoma, used a peremptory challenge to rectify the trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. The trial court’s error, we acknowledged, “may have resulted in a jury panel different from that which would otherwise have decided [’s] case.” But because no member of the jury as finally composed was removable for cause, we found no violation of ’s Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. at 86–91. We encountered a similar situation in and reached the same conclusion. who was tried in federal court, was entitled to exercise peremp tory challenges pursuant to Federal Rule of Criminal Procedure 24(b). His decision to use one of his peremptory challenges to cure the trial court’s erroneous denial of a for-cause challenge, we held, did not impair his rights under that Rule. “[A] principal reason for peremptories,” we explained, is “to help secure the constitutional guaran tee of trial by an impartial jury.” 528 U.S., Hav ing “received precisely what federal law provided,” and having been tried “by a jury on which no biased juror sat,” could not “tenably assert any violation of his right to due process.” Rivera’s efforts to distinguish and Martinez Cite as: 556 U. S. (2009) 9 Opinion of the Court are unavailing. First, Rivera observes, the defen dants in and did not challenge any of the jurors who were in fact seated. In contrast, Rivera attempted to exercise a peremptory challenge against a specific person—Gomez—whom he perceived to be unfa vorable to his cause. But, as Rivera recognizes, neither Gomez nor any other member of his jury was removable for cause. See Tr. of Oral Arg. 9. Thus, like the juries in and Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel. Gomez, however, was not privy to the in camera discussions concerning Rivera’s attempt to exercise a peremptory strike against her. See, We reject the notion that a juror is constitutionally dis qualified whenever she is aware that a party has chal lenged her. Were the rule otherwise, a party could cir cumvent by insisting in open court that a trial court dismiss a juror even though the party’s peremptory challenge was discriminatory. Or a party could obtain a juror’s dismissal simply by making in her presence a baseless for-cause challenge. Due process does not require such counterintuitive results. Second, it is not constitutionally significant that the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. The defendants in and Mar tinez-, Rivera emphasizes, were not denied their peremptory-challenge rights under applicable law—state law in and the Federal Rules of Criminal Procedure in But as we have already explained, at 7–8, errors of state law do not automatically become violations of due process. As in and Marti nez-, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Martinez- 528 U.S., ; n. 5. 10 Rather, the trial judge’s conduct reflected a good-faith, if arguably overzealous, effort to enforce the antidiscrimina tion requirements of our -related precedents. To hold that a one-time, good-faith misapplication of violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant’s discriminatory use of peremptory challenges. The Four teenth Amendment does not compel such a tradeoff. Rivera insists that, even without a constitutional viola tion, the deprivation of a state-provided peremptory chal lenge requires reversal as a matter of federal law. We disagree. Rivera relies in part on Swain, which suggested that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” at We disavowed this statement in observing, albeit in dicta, “that the oft-quoted language in Swain was not only unnecessary to the decision in that case but was founded on a series of our early cases decided long before the adoption of harmless-error review.” 528 U.S., 17, n. 4. As our recent decisions make clear, we typi cally designate an error as “structural,” therefore “re quir[ing] automatic reversal,” only when “the error ‘neces sarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” 548 U.S., 8– (quoting Neder, 5 U.S., at 9). The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we con front here, constitute an error of that character. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. In Bat son, for example, we held that the unlawful exclusion of jurors based on race requires reversal because it “violates a defendant’s right to equal protection,” “unconstitution ally discriminate[s] against the excluded juror,” and “un Cite as: 556 U. S. (2009) 11 Opinion of the Court dermine[s] public confidence in the fairness of our system of justice.” 87. Similarly, dismissal of a juror in violation of2 we have held, is constitutional error that requires vacation of a death sentence. See Gray v. Mississippi, 481 U.S. 648 (1987). See also Gomez v. United States, 490 U.S. 858, 876 (19) (“Among those basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.” (internal quotation marks omitted)). A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy. We have held the resulting judgment in such cases invalid as a matter of federal law. See, e.g., ; 4 U.S. 461 Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a compe tent and unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law. In sum, Rivera received precisely what due process required: a fair trial before an impartial and properly —————— 2 Under “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscien tious or religious scruples against its infliction.” 12 instructed jury, which found him guilty of every element of the charged offense. * * * For the reasons stated, the judgment of the Supreme Court of Illinois is Affirmed

Justice White

concurring

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

https://www.courtlistener.com/api/rest/v3/clusters/111143/

1983-064

It is relatively easy for me to concur in the judgment in this case, since in my view the case should be judged on the basis of the Magistrate's finding that, when the first DEA agent arrived, the "tube was in plain view in the box and the bags with the white powder were visible from the end of the tube." App. to Pet. for Cert. 18a. Although this finding was challenged before the District Court, that court found it unnecessary to pass on the issue. Id., at 12a-13a. As I understand its opinion, however, the Court of Appeals accepted the Magistrate's finding: the Federal Express manager "placed the bags back in the tube, leaving them visible from the tube's end, and placed the tube back in the box"; he later gave the box to the DEA agent, who "removed the tube from the open box, took the bags out of the tube, and extracted a sample of the powder." 683 F.2d 296, 297 (CA8 1982). At the very least, the Court of Appeals assumed that *127 the contraband was in plain view. The Court of Appeals then proceeded to consider whether the federal agent's field test was an illegal extension of the private search, and it invalidated the field test solely for that reason. Particularly since respondents argue here that whether or not the contraband was in plain view when the federal agent arrived is irrelevant and that the only issue is the validity of the field test, see, e. g., Brief for Respondents 25, n. 11; Tr. of Oral Arg. 28, I would proceed on the basis that the clear plastic bags were in plain view when the agent arrived and that the agent thus properly observed the suspected contraband. On that basis, I agree with the Court's conclusion in Part III that the Court of Appeals erred in holding that the type of chemical test conducted here violated the Fourth Amendment. The Court, however, would not read the Court of Appeals' opinion as having accepted the Magistrate's finding. It refuses to assume that the suspected contraband was visible when the first DEA agent arrived on the scene, conducts its own examination of the record, and devotes a major portion of its opinion to a discussion that would be unnecessary if the facts were as found by the Magistrate. The Court holds that even if the bags were not visible when the agent arrived, his removal of the tube from the box and the plastic bags from the tube and his subsequent visual examination of the bags' contents "infringed no legitimate expectation of privacy and hence was not a `search' within the meaning of the Fourth Amendment" because these actions "enabled the agent to learn nothing that had not previously been learned during the private search." Ante, at 120 (footnote omitted). I disagree with the Court's approach for several reasons. First, as I have already said, respondents have abandoned any attack on the Magistrate's findings; they assert that it is irrelevant whether the suspected contraband was in plain view when the first DEA agent arrived and argue only that the plastic bags could not be opened and their contents tested *128 without a warrant. In short, they challenge only the expansion of the private search, place no reliance on the fact that the plastic bags containing the suspected contraband might not have been left in plain view by the private searchers, and do not contend that their Fourth Amendment rights were violated by the duplication of the private search they alleged in the District Court was necessitated by the condition to which the private searchers returned the package. In these circumstances, it would be the better course for the Court to decide the case on the basis of the facts found by the Magistrate and not rejected by the Court of Appeals, to consider only whether the alleged expansion of the private search by the field test violated the Fourth Amendment, and to leave for another day the question whether federal agents could have duplicated the prior private search had that search not left the contraband in plain view. Second, if the Court feels that the Magistrate may have erred in concluding that the white powder was in plain view when the first agent arrived and believes that respondents have not abandoned their challenge to the agent's duplication of the prior private search, it nevertheless errs in responding to that challenge. The task of reviewing the Magistrate's findings belongs to the District Court and the Court of Appeals in the first instance. We should request that they perform that function, particularly since if the Magistrate's finding that the contraband was in plain view when the federal agent arrived were to be sustained, there would be no need to address the difficult constitutional question decided today. The better course, therefore, would be to remand the case after rejecting the Court of Appeals' decision invalidating the field test as an illegal expansion of the private search. Third, if this case must be judged on the basis that the plastic bags and their contents were concealed when the first agent arrived, I disagree with the Court's conclusion that the agent could, without a warrant, uncover or unwrap the tube *129 and remove its contents simply because a private party had previously done so. The remainder of this opinion will address this issue. The governing principles with respect to the constitutional protection afforded closed containers and packages may be readily discerned from our cases. The Court has consistently rejected proposed distinctions between worthy and unworthy containers and packages, United States v. Ross, 456 U.S. 798, 815, 822-823 (1982); Robbins v. California, 453 U.S. 420, 425-426 (1981) (plurality opinion), and has made clear that "the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view" and does not otherwise unmistakably reveal its contents. United States v. Ross, supra, at 822-823; see Robbins v. California, supra, at 427-428 (plurality opinion); Arkansas v. Sanders, 442 U.S. 753, 764, n. 13 (1979). Although law enforcement officers may sometimes seize such containers and packages pending issuance of warrants to examine their contents, United States v. Place, 462 U.S. 696, 701 (1983); Texas v. Brown, 460 U.S. 730, 749-750 (1983) (STEVENS, J., concurring in judgment), the mere existence of probable cause to believe that a container or package contains contraband plainly cannot justify a warrantless examination of its contents. Ante, at 114; United States v. Ross, supra, at 809-812; Arkansas v. Sanders, supra, at 762; United States v. Chadwick, 433 U.S. 1, 13, and n. 8 (1977). This well-established prohibition of warrantless searches has applied notwithstanding the manner in which the police obtained probable cause. The Court now for the first time sanctions warrantless searches of closed or covered containers or packages whenever probable cause exists as a result of a prior private search. It declares, in fact, that governmental inspections following on the heels of private searches are not searches at all as long as the police do no more than the private parties have already done. In reaching this conclusion, the Court excessively expands our prior decisions recognizing *130 that the Fourth Amendment proscribes only governmental action. Burdeau v. McDowell, 256 U.S. 465 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 487-490 (1971). As the Court observes, the Fourth Amendment "is wholly inapplicable `to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.' " Ante, at 113 (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (BLACKMUN, J., dissenting)). Where a private party has revealed to the police information he has obtained during a private search or exposed the results of his search to plain view, no Fourth Amendment interest is implicated because the police have done no more than fail to avert their eyes. Coolidge v. New Hampshire, supra, at 489. The private-search doctrine thus has much in common with the plain-view doctrine, which is "grounded on the proposition that once police are lawfully in a position to observe an item firsthand, its owner's privacy interest in that item is lost . . . ." Illinois v. Andreas, 463 U.S. 765, 771 (1983) (emphasis added). It also shares many of the doctrinal underpinnings of cases establishing that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities," United States v. Miller, 425 U.S. 435, 443 (1976), although the analogy is imperfect since the risks assumed by a person whose belongings are subjected to a private search are not comparable to those assumed by one who voluntarily chooses to reveal his secrets to a companion. Undoubtedly, the fact that a private party has conducted a search "that might have been impermissible for a government agent cannot render otherwise reasonable official conduct unreasonable." Ante, at 114-115. But the fact that a repository of personal property previously was searched by a private party has never been used to legitimize governmental conduct that otherwise would be subject to challenge under *131 the Fourth Amendment. If government agents are unwilling or unable to rely on information or testimony provided by a private party concerning the results of a private search and that search has not left incriminating evidence in plain view, the agents may wish to duplicate the private search to observe firsthand what the private party has related to them or to examine and seize the suspected contraband the existence of which has been reported. The information provided by the private party clearly would give the agents probable cause to secure a warrant authorizing such actions. Nothing in our previous cases suggests, however, that the agents may proceed to conduct their own search of the same or lesser scope as the private search without first obtaining a warrant. Walter v. United States, supra, at 660-662 (WHITE, J., concurring in part and concurring in judgment). Walter v. United States, on which the majority heavily relies in opining that "[t]he additional invasions of respondents' privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search," ante, at 115, does not require that conclusion. JUSTICE STEVENS' opinion in Walter does contain language suggesting that the government is free to do all of what was done earlier by the private searchers. But this language was unnecessary to the decision, as JUSTICE STEVENS himself recognized in leaving open the question whether "the Government would have been required to obtain a warrant had the private party been the first to view [the films]," 447 U.S., at 657, n. 9, and in emphasizing that "[e]ven though some circumstances — for example, if the results of the private search are in plain view when materials are turned over to the Government — may justify the Government's reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search." Id., at 657 (emphasis added). Nor does JUSTICE BLACKMUN's dissent in Walter necessarily support today's holding, for it emphasized that the opened containers *132 turned over to the Government agents "clearly revealed the nature of their contents," id., at 663; see id., at 665, and the facts of this case, at least as viewed by the Court, do not support such a conclusion. Today's decision also is not supported by the majority's reference to cases involving the transmission of previously private information to the police by a third party who has been made privy to that information. Ante, at 117-118. The police may, to be sure, use confidences revealed to them by a third party to establish probable cause or for other purposes, and the third party may testify about those confidences at trial without violating the Fourth Amendment. But we have never intimated until now that an individual who reveals that he stores contraband in a particular container or location to an acquaintance who later betrays his confidence has no expectation of privacy in that container or location and that the police may thus search it without a warrant. That, I believe, is the effect of the Court's opinion. If a private party breaks into a locked suitcase, a locked car, or even a locked house, observes incriminating information, returns the object of his search to its prior locked condition, and then reports his findings to the police, the majority apparently would allow the police to duplicate the prior search on the ground that the private search vitiated the owner's expectation of privacy. As JUSTICE STEVENS has previously observed, this conclusion cannot rest on the proposition that the owner no longer has a subjective expectation of privacy since a person's expectation of privacy cannot be altered by subsequent events of which he was unaware. Walter v. United States, supra, at 659, n. 12. The majority now ignores an individual's subjective expectations and suggests that "[t]he reasonableness of an official invasion of a citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred." Ante, at 115. On that view, however, the reasonableness of a particular individual's remaining expectation of privacy should turn entirely on whether the private *133 search left incriminating evidence or contraband in plain view. Cf. Walter v. United States, supra, at 663, 665 (BLACKMUN, J., dissenting). If the evidence or contraband is not in plain view and not in a container that clearly announces its contents at the end of a private search, the government's subsequent examination of the previously searched object necessarily constitutes an independent, governmental search that infringes Fourth Amendment privacy interests. 447 U.S., at 662 (WHITE, J., concurring in part and concurring in judgment). The majority opinion is particularly troubling when one considers its logical implications. I would be hard-pressed to distinguish this case, which involves a private search, from (1) one in which the private party's knowledge, later communicated to the government, that a particular container concealed contraband and nothing else arose from his presence at the time the container was sealed; (2) one in which the private party learned that a container concealed contraband and nothing else when it was previously opened in his presence; or (3) one in which the private party knew to a certainty that a container concealed contraband and nothing else as a result of conversations with its owner. In each of these cases, the approach adopted by the Court today would seem to suggest that the owner of the container has no legitimate expectation of privacy in its contents and that government agents opening that container without a warrant on the strength of information provided by the private party would not violate the Fourth Amendment. Because I cannot accept the majority's novel extension of the private-search doctrine and its implications for the entire concept of legitimate expectations of privacy, I concur only in Part III of its opinion and in the judgment.

It is relatively easy for me to concur in the judgment in this case, since in my view the case should be judged on the basis of the Magistrate's finding that, when the first DEA agent arrived, the "tube was in plain view in the box and the bags with the white powder were visible from the end of the tube." App. to Pet. for Cert. 18a. Although this finding was challenged before the District Court, that court found it unnecessary to pass on the issue. at 12a-a. As I understand its opinion, however, the Court of Appeals accepted the Magistrate's finding: the Federal Express manager "placed the bags back in the tube, leaving them visible from the tube's end, and placed the tube back in the box"; he later gave the box to the DEA agent, who "removed the tube from the open box, took the bags out of the tube, and extracted a sample of the powder." At the very least, the Court of Appeals assumed that *127 the contraband was in plain view. The Court of Appeals then proceeded to consider whether the federal agent's field test was an illegal extension of the private search, and it invalidated the field test solely for that reason. Particularly since respondents argue here that whether or not the contraband was in plain view when the federal agent arrived is irrelevant and that the only issue is the validity of the field test, see, e. g., Brief for Respondents 25, n. 11; Tr. of Oral Arg. 28, I would proceed on the basis that the clear plastic bags were in plain view when the agent arrived and that the agent thus properly observed the suspected contraband. On that basis, I agree with the Court's conclusion in Part III that the Court of Appeals erred in holding that the type of chemical test conducted here violated the Fourth Amendment. The Court, however, would not read the Court of Appeals' opinion as having accepted the Magistrate's finding. It refuses to assume that the suspected contraband was visible when the first DEA agent arrived on the scene, conducts its own examination of the record, and devotes a major portion of its opinion to a discussion that would be unnecessary if the facts were as found by the Magistrate. The Court holds that even if the bags were not visible when the agent arrived, his removal of the tube from the box and the plastic bags from the tube and his subsequent visual examination of the bags' contents "infringed no legitimate expectation of privacy and hence was not a `search' within the meaning of the Fourth Amendment" because these actions "enabled the agent to learn nothing that had not previously been learned during the private search." Ante, at 120 (footnote omitted). I disagree with the Court's approach for several reasons. First, as I have already said, respondents have abandoned any attack on the Magistrate's findings; they assert that it is irrelevant whether the suspected contraband was in plain view when the first DEA agent arrived and argue only that the plastic bags could not be opened and their contents tested *128 without a warrant. In short, they challenge only the expansion of the private search, place no reliance on the fact that the plastic bags containing the suspected contraband might not have been left in plain view by the private searchers, and do not contend that their Fourth Amendment rights were violated by the duplication of the private search they alleged in the District Court was necessitated by the condition to which the private searchers returned the package. In these circumstances, it would be the better course for the Court to decide the case on the basis of the facts found by the Magistrate and not rejected by the Court of Appeals, to consider only whether the alleged expansion of the private search by the field test violated the Fourth Amendment, and to leave for another day the question whether federal agents could have duplicated the prior private search had that search not left the contraband in plain view. Second, if the Court feels that the Magistrate may have erred in concluding that the white powder was in plain view when the first agent arrived and believes that respondents have not abandoned their challenge to the agent's duplication of the prior private search, it nevertheless errs in responding to that challenge. The task of reviewing the Magistrate's findings belongs to the District Court and the Court of Appeals in the first instance. We should request that they perform that function, particularly since if the Magistrate's finding that the contraband was in plain view when the federal agent arrived were to be sustained, there would be no need to address the difficult constitutional question decided today. The better course, therefore, would be to remand the case after rejecting the Court of Appeals' decision invalidating the field test as an illegal expansion of the private search. Third, if this case must be judged on the basis that the plastic bags and their contents were concealed when the first agent arrived, I disagree with the Court's conclusion that the agent could, without a warrant, uncover or unwrap the tube *129 and remove its contents simply because a private party had previously done so. The remainder of this opinion will address this issue. The governing principles with respect to the constitutional protection afforded closed containers and packages may be readily discerned from our cases. The Court has consistently rejected proposed distinctions between worthy and unworthy containers and packages, United ; and has made clear that "the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view" and does not otherwise unmistakably reveal its contents. United ; see ; Although law enforcement officers may sometimes seize such containers and packages pending issuance of warrants to examine their contents, United ; the mere existence of probable cause to believe that a container or package contains contraband plainly cannot justify a warrantless examination of its contents. Ante, at 114; United ; ; United This well-established prohibition of warrantless searches has applied notwithstanding the manner in which the police obtained probable cause. The Court now for the first time sanctions warrantless searches of closed or covered containers or packages whenever probable cause exists as a result of a prior private search. It declares, in fact, that governmental inspections following on the heels of private searches are not searches at all as long as the police do no more than the private parties have already done. In reaching this conclusion, the Court excessively expands our prior decisions recognizing *0 that the Fourth Amendment proscribes only governmental action. ; As the Court observes, the Fourth Amendment "is wholly inapplicable `to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.' " Ante, at 1 ). Where a private party has revealed to the police information he has obtained during a private search or exposed the results of his search to plain view, no Fourth Amendment interest is implicated because the police have done no more than fail to avert their eyes. The private-search doctrine thus has much in common with the plain-view doctrine, which is "grounded on the proposition that once police are lawfully in a position to observe an item firsthand, its owner's privacy interest in that item is lost" It also shares many of the doctrinal underpinnings of cases establishing that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities," United although the analogy is imperfect since the risks assumed by a person whose belongings are subjected to a private search are not comparable to those assumed by one who voluntarily chooses to reveal his secrets to a companion. Undoubtedly, the fact that a private party has conducted a search "that might have been impermissible for a government agent cannot render otherwise reasonable official conduct unreasonable." Ante, at 114-115. But the fact that a repository of personal property previously was searched by a private party has never been used to legitimize governmental conduct that otherwise would be subject to challenge under *1 the Fourth Amendment. If government agents are unwilling or unable to rely on information or testimony provided by a private party concerning the results of a private search and that search has not left incriminating evidence in plain view, the agents may wish to duplicate the private search to observe firsthand what the private party has related to them or to examine and seize the suspected contraband the existence of which has been reported. The information provided by the private party clearly would give the agents probable cause to secure a warrant authorizing such actions. Nothing in our previous cases suggests, however, that the agents may proceed to conduct their own search of the same or lesser scope as the private search without first obtaining a warrant. at 660- on which the majority heavily relies in opining that "[t]he additional invasions of respondents' privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search," ante, at 115, does not require that conclusion. JUSTICE STEVENS' opinion in Walter does contain language suggesting that the government is free to do all of what was done earlier by the private searchers. But this language was unnecessary to the decision, as JUSTICE STEVENS himself recognized in leaving open the question whether "the Government would have been required to obtain a warrant had the private party been the first to view [the films]," n. 9, and in emphasizing that "[e]ven though some circumstances — for example, if the results of the private search are in plain view when materials are turned over to the Government — may justify the Government's reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search." Nor does JUSTICE BLACKMUN's dissent in Walter necessarily support today's holding, for it emphasized that the opened containers *2 turned over to the Government agents "clearly revealed the nature of their contents," ; see and the facts of this case, at least as viewed by the Court, do not support such a conclusion. Today's decision also is not supported by the majority's reference to cases involving the transmission of previously private information to the police by a third party who has been made privy to that information. Ante, at 117-118. The police may, to be sure, use confidences revealed to them by a third party to establish probable cause or for other purposes, and the third party may testify about those confidences at trial without violating the Fourth Amendment. But we have never intimated until now that an individual who reveals that he stores contraband in a particular container or location to an acquaintance who later betrays his confidence has no expectation of privacy in that container or location and that the police may thus search it without a warrant. That, I believe, is the effect of the Court's opinion. If a private party breaks into a locked suitcase, a locked car, or even a locked house, observes incriminating information, returns the object of his search to its prior locked condition, and then reports his findings to the police, the majority apparently would allow the police to duplicate the prior search on the ground that the private search vitiated the owner's expectation of privacy. As JUSTICE STEVENS has previously observed, this conclusion cannot rest on the proposition that the owner no longer has a subjective expectation of privacy since a person's expectation of privacy cannot be altered by subsequent events of which he was unaware. The majority now ignores an individual's subjective expectations and suggests that "[t]he reasonableness of an official invasion of a citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred." Ante, at 115. On that view, however, the reasonableness of a particular individual's remaining expectation of privacy should turn entirely on whether the private *3 search left incriminating evidence or contraband in plain view. Cf. 665 If the evidence or contraband is not in plain view and not in a container that clearly announces its contents at the end of a private search, the government's subsequent examination of the previously searched object necessarily constitutes an independent, governmental search that infringes Fourth Amendment privacy interests. 447 U.S., at The majority opinion is particularly troubling when one considers its logical implications. I would be hard-pressed to distinguish this case, which involves a private search, from (1) one in which the private party's knowledge, later communicated to the government, that a particular container concealed contraband and nothing else arose from his presence at the time the container was sealed; (2) one in which the private party learned that a container concealed contraband and nothing else when it was previously opened in his presence; or (3) one in which the private party knew to a certainty that a container concealed contraband and nothing else as a result of conversations with its owner. In each of these cases, the approach adopted by the Court today would seem to suggest that the owner of the container has no legitimate expectation of privacy in its contents and that government agents opening that container without a warrant on the strength of information provided by the private party would not violate the Fourth Amendment. Because I cannot accept the majority's novel extension of the private-search doctrine and its implications for the entire concept of legitimate expectations of privacy, I concur only in Part III of its opinion and in the judgment.

Justice Blackmun

majority

Salve Regina College v. Russell

https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/

https://www.courtlistener.com/api/rest/v3/clusters/112564/

1990-049

The concept of a federal general common law, lurking (to use Justice Holmes' phrase) as a "brooding omnipresence in the sky," was questioned for some time before being firmly rejected in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). See Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (dissenting opinion). Erie mandates that a federal court sitting in diversity apply the substantive law of the forum State, absent a federal statutory or constitutional directive to the contrary. 304 U.S., at 78. See also 28 U.S. C. § 1652 ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the *227 United States, in cases where they apply"). In decisions after Erie, this Court made clear that state law is to be determined in the same manner as a federal court resolves an evolving issue of federal law: "with the aid of such light as [is] afforded by the materials for decision at hand, and in accordance with the applicable principles for determining state law." Meredith v. Winter Haven, 320 U.S. 228, 238 (1943). See also Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 208-209 (1938) ("Application of the `State law' to the present case ... does not present the disputants with duties difficult or strange"). In this case, we must decide specifically whether a federal court of appeals may review a district court's determination of state law under a standard less probing than that applied to a determination of federal law. I The issue presented arises out of a contract dispute between a college and one of its students. Petitioner Salve Regina College is an institution of higher education located in Newport, R. I. Respondent Sharon L. Russell was admitted to the college and began her studies as a freshman in 1982. The following year, respondent sought admission to the college's nursing department in order to pursue a bachelor of science degree in nursing. She was accepted by the department and began her nursing studies in the fall of 1983. Respondent, who was 5'6" tall, weighed in excess of 300 pounds when she was accepted in the nursing program. Immediately after the 1983 school year began, respondent's weight became a topic of commentary and concern by officials of the nursing program. Respondent's first year in the program was marked by a series of confrontations and negotiations concerning her obesity and its effect upon her ability to complete the clinical requirements safely and satisfactorily. During her junior year, respondent signed a document that was designated as a "contract" and conditioned her further *228 participation in the nursing program upon weekly attendance at a weight-loss seminar and a realized average loss of two pounds per week. When respondent failed to meet these commitments, she was asked to withdraw from the program and did so. She transferred to a nursing program at another college, but had to repeat her junior year in order to satisfy the transferee institution's 2-year residency requirement. As a consequence, respondent's nursing education took five years rather than four. She also underwent surgery for her obesity. In 1987, respondent successfully completed her nursing education, and she is now a registered nurse. Soon after leaving Salve Regina College, respondent filed this civil action in the United States District Court for the District of Rhode Island. She asserted, among others, claims based on (1) intentional infliction of emotional distress, (2) invasion of privacy, and (3) nonperformance by the college of its implied agreement to educate respondent.[1] Subject-matter jurisdiction in the District Court was based on diversity of citizenship. See 28 U.S. C. § 1332. The parties agree that the law of Rhode Island applies to all substantive aspects of the action. See Erie R. Co. v. Tompkins, supra. At the close of plaintiff-respondent's case in chief, the District Court directed a verdict for the individual defendants on all three of the remaining claims, and for the college on the claims for intentional infliction of emotional distress and *229 invasion of privacy. App. 82. The court, however, denied the college's motion for a directed verdict on the breach-of-contract claim, reasoning that "a legitimate factual issue" remained concerning whether "there was substantial performance by the plaintiff in her overall contractual relationship at Salve Regina." Id., at 88. At the close of all the evidence, the college renewed its motion for a directed verdict. It argued that under Rhode Island law the strict commercial doctrine of substantial performance did not apply in the general academic context. Therefore, according to petitioner, because respondent admitted she had not fulfilled the terms of the contract, the college was entitled to judgment as a matter of law. The District Court denied petitioner's motion. Id., at 92. Acknowledging that the Supreme Court of Rhode Island, to that point, had limited the application of the substantial-performance doctrine to construction contracts, the District Court nonetheless concluded, as a matter of law, that the Supreme Court of Rhode Island would apply that doctrine to the facts of respondent's case. Id., at 90-91. The Federal District Judge based this conclusion, in part, on his observation that "I was a state trial judge for 18 and ½ years, and I have a feel for what the Rhode Island Supreme Court will do or won't do." Id., at 91. Accordingly, the District Court submitted the breach-of-contract claim to the jury. The court instructed the jury: "The law provides that substantial and not exact performance accompanied by good faith is what is required in a case of a contract of this type. It is not necessary that the plaintiff have fully and completely performed every item specified in the contract between the parties. It is sufficient if there has been substantial performance, not necessarily full performance, so long as the substantial performance was in good faith and in compliance with the contract, except for some minor and relatively unimportant deviation or omission." Id., at 97. *230 The jury returned a verdict for respondent, and determined that the damages were $30,513.40. Id., at 113. Judgment was entered. Id., at 115. Both respondent and petitioner appealed. The United States Court of Appeals for the First Circuit affirmed. 890 F.2d 484 (1989). It first upheld the District Court's directed verdict dismissing respondent's claims for intentional infliction of emotional distress and invasion of privacy. Id., at 487-488. It then turned to petitioner's argument that the District Court erred in submitting the breach-of-contract claim to the jury. Rejecting petitioner's argument that, under Rhode Island law, the doctrine of substantial performance does not apply in the college-student context, the court stated: "In this case of first impression, the district court held that the Rhode Island Supreme Court would apply the substantial performance standard to the contract in question. In view of the customary appellate deference accorded to interpretations of state law made by federal judges of that state, Dennis v. Rhode Island Hospital Trust Nat'l Bank, 744 F.2d 893, 896 (1st Cir. 1984); O'Rourke v. Eastern Air Lines Inc., 730 F.2d 842, 847 (2d Cir. 1984), we hold that the district court's determination that the Rhode Island Supreme Court would apply standard contract principles is not reversible error." Id., at 489. Petitioner college sought a writ of certiorari from this Court. It alleged that the Court of Appeals erred in deferring to the District Court's determination of state law.[2] A *231 majority of the Courts of Appeals, although varying in their phraseology, embrace a rule of deference similar to that articulated by the Court of Appeals in this case. See, e. g., Norton v. St. Paul Fire & Marine Ins. Co., 902 F.2d 1355, 1357 (CA8 1990) ("In general, we accord substantial deference to a district court's interpretation of the law of the state in which it sits"), and Self v. Wal-Mart Stores, Inc., 885 F.2d 336, 339 (CA6 1989) ("[W]e should give `considerable weight' to the trial court's views on such questions of local law"). Two Courts of Appeals, however, have broken ranks recently with their sister Circuits. They have concluded that a district-court determination of state law is subject to plenary review by the appellate court. See Craig v. Lake Asbestos of Quebec, Ltd., 843 F.2d 145, 148 (CA3 1988), and In re McLinn, 739 F.2d 1395 (CA9 1984) (en banc, with a divided vote). We granted certiorari to resolve the conflict. 497 U.S. 1023 (1990). II We conclude that a court of appeals should review de novo a district court's determination of state law. As a general matter, of course, the courts of appeals are vested with plenary appellate authority over final decisions of district courts. See 28 U.S. C. § 1291. The obligation of responsible appellate jurisdiction implies the requisite authority to review independently a lower court's determinations. Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration. District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge's legal research with memoranda and briefs. Thus, *232 trial judges often must resolve complicated legal questions without benefit of "extended reflection [or] extensive information." Coenen, To Defer or Not to Defer: a Study of Federal Circuit Court Deference to District Court Rulings on State Law, 73 Minn. L. Rev. 899, 923 (1989). Courts of appeals, on the other hand, are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties' briefs will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge. Perhaps most important, courts of appeals employ multijudge panels, see 28 U.S. C. §§46(b) and (c), that permit reflective dialogue and collective judgment. Over 30 years ago, Justice Frankfurter accurately observed: "Without adequate study there cannot be adequate reflection; without adequate reflection there cannot be adequate discussion; without adequate discussion there cannot be that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions." Dick v. New York Life Ins. Co., 359 U.S. 437, 458-459 (1959) (dissenting opinion). Independent appellate review necessarily entails a careful consideration of the district court's legal analysis, and an efficient and sensitive appellate court at least will naturally consider this analysis in undertaking its review. Petitioner readily acknowledges the importance of a district court's reasoning to the appellate court's review. See Tr. of Oral Arg. 11, 19-22. Any expertise possessed by the district court will inform the structure and content of its conclusions of law and thereby become evident to the reviewing court. If the court of appeals finds that the district court's analytical sophistication *233 and research have exhausted the state-law inquiry, little more need be said in the appellate opinion. Independent review, however, does not admit of unreflective reliance on a lower court's inarticulable intuitions. Thus, an appropriately respectful application of de novo review should encourage a district court to explicate with care the basis for its legal conclusions. See Fed. Rule Civ. Proc. 52(a) (requiring the district court to "state separately its conclusions of law"). Those circumstances in which Congress or this Court has articulated a standard of deference for appellate review of district-court determinations reflect an accommodation of the respective institutional advantages of trial and appellate courts. In deference to the unchallenged superiority of the district court's factfinding ability, Rule 52(a) commands that a trial court's findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In addition, it is "especially common" for issues involving supervision of litigation to be reviewed for abuse of discretion. See Pierce v. Underwood, 487 U.S. 552, 558, n. 1 (1988). Finally, we have held that deferential review of mixed questions of law and fact is warranted when it appears that the district court is "better positioned" than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine. Miller v. Fenton, 474 U.S. 104, 114 (1985); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990) ("[T]he district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11"); Pierce, 487 U. S., at 562 ("[T]he question whether the Government's litigating position has been `substantially justified' is ... a multifarious and novel question, little susceptible, for the time being at least, of useful generalization"). Nothing about the exercise of diversity jurisdiction alters these functional components of decisionmaking or otherwise *234 warrants departure from a rule of independent appellate review. Actually, appellate deference to the district court's determination of state law is inconsistent with the principles underlying this Court's decision in Erie. The twin aims of the Erie doctrine—"discouragement of forum-shopping and avoidance of inequitable administration of the laws," Hanna v. Plumer, 380 U.S. 460, 468 (1965)—are components of the goal of doctrinal coherence advanced by independent appellate review. As respondent has conceded, deferential appellate review invites divergent development of state law among the federal trial courts even within a single State. Tr. of Oral Arg. 34-36. Moreover, by denying a litigant access to meaningful review of state-law claims, appellate courts that defer to the district courts' state-law determinations create a dual system of enforcement of state-created rights, in which the substantive rule applied to a dispute may depend on the choice of forum. Cf. Erie, 304 U. S., at 74-75 ("[The rule of Swift v. Tyson, 16 Pet. 1 (1842)] made rights enjoyed under the unwritten `general law' vary according to whether enforcement was sought in the state or in the federal court"). Neither of these results, unavoidable in the absence of independent appellate review, can be reconciled with the commands of Erie. Although some might say that this Court has not spoken with a uniformly clear voice on the issue of deference to a district judge's determination of state law, a careful consideration of our cases makes apparent the duty of appellate courts to provide meaningful review of such a determination. In a series of cases decided soon after Erie, the Court noted that the appellate courts had applied general federal law instead of the law of the respective States, and remanded to the Courts of Appeals for consideration of the applicable principles of state law. See, e. g., New York Life Ins. Co. v. Jackson, 304 U.S. 261 (1938), and Rosenthal v. New York Life Ins. Co., 304 U.S. 263 (1938). It is true that in Bernhardt v. Polygraphic Co. of America, 350 U.S. 198 (1956), *235 this Court remanded the case to the District Court for application of state law. The Court noted, however, that the law of the State was firmly settled, and emphasized: "Were the question in doubt or deserving further canvass, we would of course remand the case to the Court of Appeals to pass on this question of [state] law." Id., at 205.[3] III In urging this Court to adopt the deferential standard embraced by the majority of the Courts of Appeals, respondent offers two arguments. First, respondent suggests that the appellate courts professing adherence to the rule of deference actually are reviewing de novo the district-court determinations of state law. Second, respondent presses the familiar contention that district judges are better arbiters of unsettled state law because they have exposure to the judicial system of the State in which they sit. We reject each of these arguments. A Respondent primarily contends that the Courts of Appeals that claim to accord special consideration to the District Court's state-law expertise actually undertake plenary review of a determination of state law. According to respondent, this is simply de novo review "cloth[ed] in `deferential' robes." Brief for Respondent 15. In support of this contention, respondent refers to several decisions in which the appellate court has announced that it is bound to review deferentially a district court's determination of state law, yet nonetheless has found that determination to constitute reversible *236 error. Afram Export Corp. v. Metallurgiki Halyps, S. A., 772 F.2d 1358, 1370 (CA7 1985); Norton v. St. Paul Fire & Marine Ins. Co., 902 F.2d 1355 (CA8 1990). Respondent also relies on cases in which the Courts of Appeals, while articulating a rule of deference, acknowledge their obligation to scrutinize closely the District Court's legal conclusions. See Foster v. National Union Fire Ins. Co. of Pittsburgh, 902 F.2d 1316 (CA8 1990). See also In re McLinn, 739 F. 2d, at 1405 (dissenting opinion) ("The majority overreacts to a problem that is basically one of terminology"). We decline the invitation to assume that courts of appeals craft their opinions disingenuously. The fact that an appellate court overturns an erroneous determination of state law in no way indicates that the appellate court is not applying the rule of deference articulated in the opinion. The cases cited by respondent confirm this. In Foster, for example, the Court of Appeals articulated a rule of deference, yet cautioned: "We have not, however, failed to closely examine the matter ourselves." 902 F.2d, at 1318. Respondent would have us interpret this caveat as an acknowledgment of the appellate court's obligation to review the state-law question de novo. See Brief for Respondent 17-18, and n. 23. The Court of Appeals, however, expressly acknowledged that it would not reverse the District Court's determination "unless its analysis is `fundamentally deficient . . ., without a reasonable basis, or contrary to a reported state-court opinion.'" Foster, 902 F. 2d, at 1318 (citations omitted). After reviewing the applicable law in some detail, the Court of Appeals concluded: "[T]he district court's interpretation of the applicable Arkansas law is certainly not deficient in analysis and is reasonable." Id., at 1320. This neither purports to be, nor is, a conclusion following from de novo review. Nor does it suffice to recognize that little substantive difference may separate the form of deference articulated and applied by the several Courts of Appeals and the independent appellate review urged by petitioner. Respondent argues *237 that the subtle differences between these standards are insufficient to warrant intrusion into the manner in which appellate courts review state-law determinations. A variation of this argument forms the framework upon which the dissent in McLinn rests. See 739 F.2d, at 1404 ("By giving `substantial deference,' or . . . `great weight,' to the decisions of the district courts, appellate courts do not suspend their own thought processes"). As a practical matter, respondent and the dissent in McLinn frequently may be correct. We do not doubt that in many cases the application of a rule of deference in lieu of independent review will not affect the outcome of an appeal. In many diversity cases the controlling issues of state law will have been squarely resolved by the state courts, and a district court's adherence to the settled rule will be indisputably correct. See, e. g., Bernhardt, 350 U. S., at 204-205. In a case where the controlling question of state law remains unsettled, it is not unreasonable to assume that the considered judgment of the court of appeals frequently will coincide with the reasoned determination of the district court. Where the state-law determinations of the two courts diverge, the choice between these standards of review is of no significance if the appellate court concludes that the district court was clearly wrong.[4] Thus, the mandate of independent review will alter the appellate outcome only in those few cases where the appellate *238 court would resolve an unsettled issue of state law differently from the district court's resolution, but cannot conclude that the district court's determination constitutes clear error. See, e. g., In re McLinn, 739 F. 2d, at 1397 ("The panel indicated that if the question of law were reviewed under the deferential standard that we have applied in the past, which permits reversal only for clear error, then they would affirm; but if they were to review the determination under an independent de novo standard, they would reverse"). These few instances, however, make firm our conviction that the difference between a rule of deference and the duty to exercise independent review is "much more than a mere matter of degree." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501 (1984). When de novo review is compelled, no form of appellate deference is acceptable. B Respondent and her amicus also argue that de novo review is inappropriate because, as a general matter, a district judge is better positioned to determine an issue of state law than are the judges on the court of appeals. This superior capacity derives, it is said, from the regularity with which a district judge tries a diversity case governed by the law of the forum State, and from the extensive experience that the district judge generally has had as practitioner or judge in the forum State. See Brief for Respondent 7-10; Brief for Ford Motor Co. as Amicus Curiae 9-11. We are unpersuaded. As an initial matter, this argument seems to us to be founded fatally on overbroad generalizations. Moreover, and more important, the proposition that a district judge is better able to "intuit" the answer to an unsettled question of state law is foreclosed by our holding in Erie. The very essence of the Erie doctrine is that the bases of state law are presumed to be communicable by the parties to a federal judge no less than to a state judge. Almost 35 years ago, Professor Kurland stated: "Certainly, if the law *239 is not a brooding omnipresence in the sky over the United States, neither is it a brooding omnipresence in the sky of Vermont, or New York or California." Kurland, Mr. Justice Frankfurter, the Supreme Court and the Erie Doctrine in Diversity Cases, 67 Yale L. J. 187, 217 (1957). See Southern Pacific Co., 244 U. S., at 222 (Holmes, J., dissenting) ("The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified"). Similarly, the bases of state law are as equally communicable to the appellate judges as they are to the district judge. To the extent that the available state law on a controlling issue is so unsettled as to admit of no reasoned divination, we can see no sense in which a district judge's prior exposure or nonexposure to the state judiciary can be said to facilitate the rule of reason.[5] IV The obligation of responsible appellate review and the principles of a cooperative judicial federalism underlying Erie require that courts of appeals review the state-law determinations of district courts de novo. The Court of Appeals in this *240 case therefore erred in deferring to the local expertise of the District Court. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The concept of a federal general common law, lurking (to use Justice Holmes' phrase) as a "brooding omnipresence in the sky," was questioned for some time before being firmly rejected in Erie R. See Southern Pacific ; Black & White Taxicab & Transfer Erie mandates that a federal court sitting in diversity apply the substantive law of the forum State, absent a federal statutory or constitutional directive to the See also 28 U.S. C. 1652 ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the *227 United States, in cases where they apply"). In decisions after Erie, this Court made clear that state law is to be determined in the same manner as a federal court resolves an evolving issue of federal law: "with the aid of such light as [is] afforded by the materials for decision at hand, and in accordance with the applicable principles for determining state law." See also In this case, we must decide specifically whether a federal court of appeals may review a district court's determination of state law under a standard less probing than that applied to a determination of federal law. I The issue presented arises out of a contract dispute between a college and one of its students. Petitioner Salve Regina College is an institution of higher education located in Newport, R. I. Respondent Sharon L. Russell was admitted to the college and began her studies as a freshman in 1982. The following year, respondent sought admission to the college's nursing department in order to pursue a bachelor of science degree in nursing. She was accepted by the department and began her nursing studies in the fall of 1983. Respondent, who was 5'6" tall, weighed in excess of 300 pounds when she was accepted in the nursing program. Immediately after the 1983 school year began, respondent's weight became a topic of commentary and concern by officials of the nursing program. Respondent's first year in the program was marked by a series of confrontations and negotiations concerning her obesity and its effect upon her ability to complete the clinical requirements safely and satisfactorily. During her junior year, respondent signed a document that was designated as a "contract" and conditioned her further *228 participation in the nursing program upon weekly attendance at a weight-loss seminar and a realized average loss of two pounds per week. When respondent failed to meet these commitments, she was asked to withdraw from the program and did so. She transferred to a nursing program at another college, but had to repeat her junior year in order to satisfy the transferee institution's 2-year residency requirement. As a consequence, respondent's nursing education took five years rather than four. She also underwent surgery for her obesity. In 1987, respondent successfully completed her nursing education, and she is now a registered nurse. Soon after leaving Salve Regina College, respondent filed this civil action in the United States District Court for the District of Rhode Island. She asserted, among others, claims based on (1) intentional infliction of emotional distress, (2) invasion of privacy, and (3) nonperformance by the college of its implied agreement to educate respondent.[1] Subject-matter jurisdiction in the District Court was based on diversity of citizenship. See 28 U.S. C. 1332. The parties agree that the law of Rhode Island applies to all substantive aspects of the action. See Erie R. At the close of plaintiff-respondent's case in chief, the District Court directed a verdict for the individual defendants on all three of the remaining claims, and for the college on the claims for intentional infliction of emotional distress and *229 invasion of privacy. App. 82. The court, however, denied the college's motion for a directed verdict on the breach-of-contract claim, reasoning that "a legitimate factual issue" remained concerning whether "there was substantial performance by the plaintiff in her overall contractual relationship at Salve Regina." At the close of all the evidence, the college renewed its motion for a directed verdict. It argued that under Rhode Island law the strict commercial doctrine of substantial performance did not apply in the general academic context. Therefore, according to petitioner, because respondent admitted she had not fulfilled the terms of the contract, the college was entitled to judgment as a matter of law. The District Court denied petitioner's motion. Acknowledging that the Supreme Court of Rhode Island, to that point, had limited the application of the substantial-performance doctrine to construction contracts, the District Court nonetheless concluded, as a matter of law, that the Supreme Court of Rhode Island would apply that doctrine to the facts of respondent's case. The Federal District Judge based this conclusion, in part, on his observation that "I was a state trial judge for 18 and ½ years, and I have a feel for what the Rhode Island Supreme Court will do or won't do." Accordingly, the District Court submitted the breach-of-contract claim to the jury. The court instructed the jury: "The law provides that substantial and not exact performance accompanied by good faith is what is required in a case of a contract of this type. It is not necessary that the plaintiff have fully and completely performed every item specified in the contract between the parties. It is sufficient if there has been substantial performance, not necessarily full performance, so long as the substantial performance was in good faith and in compliance with the contract, except for some minor and relatively unimportant deviation or omission." *230 The jury returned a verdict for respondent, and determined that the damages were $30,513.40. Judgment was entered. Both respondent and petitioner appealed. The United States Court of Appeals for the First Circuit affirmed. It first upheld the District Court's directed verdict dismissing respondent's claims for intentional infliction of emotional distress and invasion of privacy. It then turned to petitioner's argument that the District Court erred in submitting the breach-of-contract claim to the jury. Rejecting petitioner's argument that, under Rhode Island law, the doctrine of substantial performance does not apply in the college-student context, the court stated: "In this case of first impression, the district court held that the Rhode Island Supreme Court would apply the substantial performance standard to the contract in question. In view of the customary appellate deference accorded to interpretations of state law made by federal judges of that state, ; we hold that the district court's determination that the Rhode Island Supreme Court would apply standard contract principles is not reversible error." Petitioner college sought a writ of certiorari from this Court. It alleged that the Court of Appeals erred in deferring to the District Court's determination of state law.[2] A *231 majority of the Courts of Appeals, although varying in their phraseology, embrace a rule of deference similar to that articulated by the Court of Appeals in this case. See, e. g., and Two Courts of Appeals, however, have broken ranks recently with their sister Circuits. They have concluded that a district-court determination of state law is subject to plenary review by the appellate court. See and In re McLinn, We granted certiorari to resolve the conflict. II We conclude that a court of appeals should review de novo a district court's determination of state law. As a general matter, of course, the courts of appeals are vested with plenary appellate authority over final decisions of district courts. See 28 U.S. C. 1291. The obligation of responsible appellate jurisdiction implies the requisite authority to review independently a lower court's determinations. Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration. District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge's legal research with memoranda and briefs. Thus, *232 trial judges often must resolve complicated legal questions without benefit of "extended reflection [or] extensive information." Coenen, To Defer or Not to Defer: a Study of Federal Circuit Court Deference to District Court Rulings on State Law, Courts of appeals, on the other hand, are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties' briefs will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge. Perhaps most important, courts of appeals employ multijudge panels, see 28 U.S. C. 46(b) and (c), that permit reflective dialogue and collective judgment. Over 30 years ago, Justice Frankfurter accurately observed: "Without adequate study there cannot be adequate reflection; without adequate reflection there cannot be adequate discussion; without adequate discussion there cannot be that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions." Independent appellate review necessarily entails a careful consideration of the district court's legal analysis, and an efficient and sensitive appellate court at least will naturally consider this analysis in undertaking its review. Petitioner readily acknowledges the importance of a district court's reasoning to the appellate court's review. See Tr. of Oral Arg. 11, 19-22. Any expertise possessed by the district court will inform the structure and content of its conclusions of law and thereby become evident to the reviewing court. If the court of appeals finds that the district court's analytical sophistication *233 and research have exhausted the state-law inquiry, little more need be said in the appellate opinion. Independent review, however, does not admit of unreflective reliance on a lower court's inarticulable intuitions. Thus, an appropriately respectful application of de novo review should encourage a district court to explicate with care the basis for its legal conclusions. See Fed. Rule Civ. Proc. 52(a) (requiring the district court to "state separately its conclusions of law"). Those circumstances in which Congress or this Court has articulated a standard of deference for appellate review of district-court determinations reflect an accommodation of the respective institutional advantages of trial and appellate courts. In deference to the unchallenged superiority of the district court's factfinding ability, Rule 52(a) commands that a trial court's findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In addition, it is "especially common" for issues involving supervision of litigation to be reviewed for abuse of discretion. See Finally, we have held that deferential review of mixed questions of law and fact is warranted when it appears that the district court is "better positioned" than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine. ; see also Cooter & ; Nothing about the exercise of diversity jurisdiction alters these functional components of decisionmaking or otherwise *234 warrants departure from a rule of independent appellate review. Actually, appellate deference to the district court's determination of state law is inconsistent with the principles underlying this Court's decision in Erie. The twin aims of the Erie doctrine—"discouragement of forum-shopping and avoidance of inequitable administration of the laws," —are components of the goal of doctrinal coherence advanced by independent appellate review. As respondent has conceded, deferential appellate review invites divergent development of state law among the federal trial courts even within a single State. Tr. of Oral Arg. 34-36. Moreover, by denying a litigant access to meaningful review of state-law claims, appellate courts that defer to the district courts' state-law determinations create a dual system of enforcement of state-created rights, in which the substantive rule applied to a dispute may depend on the choice of forum. Cf. Erie, -75 ] made rights enjoyed under the unwritten `general law' vary according to whether enforcement was sought in the state or in the federal court"). Neither of these results, unavoidable in the absence of independent appellate review, can be reconciled with the commands of Erie. Although some might say that this Court has not spoken with a uniformly clear voice on the issue of deference to a district judge's determination of state law, a careful consideration of our cases makes apparent the duty of appellate courts to provide meaningful review of such a determination. In a series of cases decided soon after Erie, the Court noted that the appellate courts had applied general federal law instead of the law of the respective States, and remanded to the Courts of Appeals for consideration of the applicable principles of state law. See, e. g., New York Life Ins. and It is true that in *235 this Court remanded the case to the District Court for application of state law. The Court noted, however, that the law of the State was firmly settled, and emphasized: "Were the question in doubt or deserving further canvass, we would of course remand the case to the Court of Appeals to pass on this question of [state] law."[3] III In urging this Court to adopt the deferential standard embraced by the majority of the Courts of Appeals, respondent offers two arguments. First, respondent suggests that the appellate courts professing adherence to the rule of deference actually are reviewing de novo the district-court determinations of state law. Second, respondent presses the familiar contention that district judges are better arbiters of unsettled state law because they have exposure to the judicial system of the State in which they sit. We reject each of these arguments. A Respondent primarily contends that the Courts of Appeals that claim to accord special consideration to the District Court's state-law expertise actually undertake plenary review of a determination of state law. According to respondent, this is simply de novo review "cloth[ed] in `deferential' robes." Brief for Respondent 15. In support of this contention, respondent refers to several decisions in which the appellate court has announced that it is bound to review deferentially a district court's determination of state law, yet nonetheless has found that determination to constitute reversible *236 error. Afram Export ; Respondent also relies on cases in which the Courts of Appeals, while articulating a rule of deference, acknowledge their obligation to scrutinize closely the District Court's legal conclusions. See See also In re McLinn, 739 F. 2d, at 1405 ("The majority overreacts to a problem that is basically one of terminology"). We decline the invitation to assume that courts of appeals craft their opinions disingenuously. The fact that an appellate court overturns an erroneous determination of state law in no way indicates that the appellate court is not applying the rule of deference articulated in the opinion. The cases cited by respondent confirm this. In Foster, for example, the Court of Appeals articulated a rule of deference, yet cautioned: "We have not, however, failed to closely examine the matter ourselves." Respondent would have us interpret this caveat as an acknowledgment of the appellate court's obligation to review the state-law question de novo. See Brief for Respondent 17-18, and n. 23. The Court of Appeals, however, expressly acknowledged that it would not reverse the District Court's determination "unless its analysis is `fundamentally deficient, without a reasonable basis, or contrary to a reported state-court opinion.'" Foster, 902 F. 2d, at 1318 (citations omitted). After reviewing the applicable law in some detail, the Court of Appeals concluded: "[T]he district court's interpretation of the applicable Arkansas law is certainly not deficient in analysis and is reasonable." This neither purports to be, nor is, a conclusion following from de novo review. Nor does it suffice to recognize that little substantive difference may separate the form of deference articulated and applied by the several Courts of Appeals and the independent appellate review urged by petitioner. Respondent argues *237 that the subtle differences between these standards are insufficient to warrant intrusion into the manner in which appellate courts review state-law determinations. A variation of this argument forms the framework upon which the dissent in McLinn rests. See As a practical matter, respondent and the dissent in McLinn frequently may be correct. We do not doubt that in many cases the application of a rule of deference in lieu of independent review will not affect the outcome of an appeal. In many diversity cases the controlling issues of state law will have been squarely resolved by the state courts, and a district court's adherence to the settled rule will be indisputably correct. See, e. g., -205. In a case where the controlling question of state law remains unsettled, it is not unreasonable to assume that the considered judgment of the court of appeals frequently will coincide with the reasoned determination of the district court. Where the state-law determinations of the two courts diverge, the choice between these standards of review is of no significance if the appellate court concludes that the district court was clearly wrong.[4] Thus, the mandate of independent review will alter the appellate outcome only in those few cases where the appellate * court would resolve an unsettled issue of state law differently from the district court's resolution, but cannot conclude that the district court's determination constitutes clear error. See, e. g., In re McLinn, 739 F. 2d, at 1397 ("The panel indicated that if the question of law were reviewed under the deferential standard that we have applied in the past, which permits reversal only for clear error, then they would affirm; but if they were to review the determination under an independent de novo standard, they would reverse"). These few instances, however, make firm our conviction that the difference between a rule of deference and the duty to exercise independent review is "much more than a mere matter of degree." Bose When de novo review is compelled, no form of appellate deference is acceptable. B Respondent and her amicus also argue that de novo review is inappropriate because, as a general matter, a district judge is better positioned to determine an issue of state law than are the judges on the court of appeals. This superior capacity derives, it is said, from the regularity with which a district judge tries a diversity case governed by the law of the forum State, and from the extensive experience that the district judge generally has had as practitioner or judge in the forum State. See Brief for Respondent 7-10; Brief for Ford Motor as Amicus Curiae 9-11. We are unpersuaded. As an initial matter, this argument seems to us to be founded fatally on overbroad generalizations. Moreover, and more important, the proposition that a district judge is better able to "intuit" the answer to an unsettled question of state law is foreclosed by our holding in Erie. The very essence of the Erie doctrine is that the bases of state law are presumed to be communicable by the parties to a federal judge no less than to a state judge. Almost 35 years ago, Professor Kurland stated: "Certainly, if the law *239 is not a brooding omnipresence in the sky over the United States, neither is it a brooding omnipresence in the sky of Vermont, or New York or California." Kurland, Mr. Justice Frankfurter, the Supreme Court and the Erie Doctrine in Diversity Cases, 67 Yale L. J. 187, 217 (1957). See Southern Pacific 244 U. S., at ("The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified"). Similarly, the bases of state law are as equally communicable to the appellate judges as they are to the district judge. To the extent that the available state law on a controlling issue is so unsettled as to admit of no reasoned divination, we can see no sense in which a district judge's prior exposure or nonexposure to the state judiciary can be said to facilitate the rule of reason.[5] IV The obligation of responsible appellate review and the principles of a cooperative judicial federalism underlying Erie require that courts of appeals review the state-law determinations of district courts de novo. The Court of Appeals in this *240 case therefore erred in deferring to the local expertise of the District Court. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice White

majority

Smalis v. Pennsylvania

https://www.courtlistener.com/opinion/111663/smalis-v-pennsylvania/

https://www.courtlistener.com/api/rest/v3/clusters/111663/

1985-079

At the close of the prosecution's case in chief, the trial court dismissed certain charges against petitioners on the ground that the evidence presented was legally insufficient to support a conviction. The question presented is whether the Double Jeopardy Clause bars the prosecution from appealing this ruling. I Petitioners, husband and wife, owned a building housing a restaurant and some apartments that burned under suspicious circumstances, killing two of the tenants. Petitioners were charged with various crimes in connection with this fire, including criminal homicide, reckless endangerment, and causing a catastrophe.[1] They opted for a bench trial, and at the close of the prosecution's case in chief challenged the sufficiency of the evidence by filing a demurrer pursuant to Pennsylvania Rule of Criminal Procedure 1124(a)(1).[2] The trial court sustained petitioners' demurrer to charges of murder, voluntary manslaughter, and causing a catastrophe, stating: "As the trier of fact and law, the court was not satisfied, after considering all of the facts together with all reasonable *142 inferences which the Commonwealth's evidence tended to prove, that there was sufficient evidence from which it could be concluded that either of the defendants was guilty beyond a reasonable doubt of setting or causing to be set the fire in question." App. to Pet. for Cert. 101a-102a. The Commonwealth sought review of this ruling in the Superior Court of Pennsylvania, but a panel of that court quashed the appeal, holding it barred by the Double Jeopardy Clause. The Superior Court granted review en banc and affirmed. 331 Pa. Super. 307, 480 A.2d 1046 (1984). Citing a number of our decisions as controlling authority, the court set out two relevant principles of law. First, a judgment that the evidence is legally insufficient to sustain a guilty verdict constitutes an acquittal for purposes of the Double Jeopardy Clause. See, e. g., United States v. Martin Linen Supply Co., 430 U.S. 564 (1977); Burks v. United States, 437 U.S. 1 (1978); Sanabria v. United States, 437 U.S. 54 (1978); United States v. Scott, 437 U.S. 82, 91 (1978) (dicta); Hudson v. Louisiana, 450 U.S. 40 (1981). Second, when a trial court enters such a judgment, the Double Jeopardy Clause bars an appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into further proceedings devoted to the resolution of factual issues going to the elements of the offense charged. The Superior Court concluded that because reversal of the trial court's granting of petitioners' demurrer would necessitate further trial proceedings, the Commonwealth's appeal was improper under Martin Linen. The Commonwealth appealed to the Supreme Court of Pennsylvania, which reversed. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985).[3] The court relied heavily on the statement in United States v. Scott, supra, that a trial *143 judge's ruling in a defendant's favor constitutes an acquittal "only when `the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.' " Id., at 97 (quoting Martin Linen, supra, at 571). The court gave the following explanation of why the trial court's ruling on petitioners' demurrer is not within this definition of an acquittal: "In deciding whether to grant a demurrer, the court does not determine whether or not the defendant is guilty on such evidence, but determines whether the evidence, if credited by the jury, is legally sufficient to warrant the conclusion that the defendant is guilty beyond a reasonable doubt. . . . "Hence, by definition, a demurrer is not a factual determination. . . . [T]he question before the trial judge in ruling on a demurrer remains purely one of law. "We conclude, therefore, that a demurrer is not the functional equivalent of an acquittal, and that the Commonwealth has the right to appeal from an order sustaining defendant's demurrer to its case-in-chief. In such a situation, the defendant himself elects to seek dismissal on grounds unrelated to his factual guilt or innocence." Commonwealth v. Zoller, supra, at 357-358, 490 A.2d, at 401. Accordingly, the Pennsylvania Supreme Court remanded the case to the Superior Court for a determination on the merits of the appeal. We granted certiorari, 474 U.S. 944 (1985), and now reverse.[4] *144 II The Pennsylvania Supreme Court erred in holding that, for purposes of considering a plea of double jeopardy, a defendant who demurs at the close of the prosecution's case in chief "elects to seek dismissal on grounds unrelated to his factual guilt or innocence." Commonwealth v. Zoller, supra, at 358, 490 A.2d, at 401. What the demurring defendant seeks is a ruling that as a matter of law the State's evidence is insufficient to establish his factual guilt.[5] Our past decisions, which we are not inclined to reconsider at this time, hold that such a ruling is an acquittal under the Double Jeopardy Clause. See, e. g., United States v. Martin Linen Supply Co., supra; Sanabria v. United States, supra.[6] United States v. Scott does not overturn these precedents; indeed, it plainly indicates that the category of acquittals includes "judgment[s] . . . by the court that the evidence is insufficient to convict." 437 U.S., at 91.[7] *145 The Commonwealth argues that its appeal is nonetheless permissible under Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), because resumption of petitioners' bench trial following a reversal on appeal would simply constitute "continuing jeopardy." Brief for Respondent 87-88. But Lydon teaches that "[a]cquittals, unlike convictions, terminate the initial jeopardy." 466 U.S., at 308. Thus, whether the trial is to a jury or to the bench, subjecting the defendant to postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause. Arizona v. Rumsey, 467 U.S. 203, 211-212 (1984).[8] When a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose. Allowing such an appeal would frustrate the interest of the accused in having an end to the proceedings against him. The Superior Court was correct, therefore, in holding that the Double Jeopardy Clause bars a postacquittal appeal by the prosecution *146 not only when it might result in a second trial, but also if reversal would translate into " `further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.' " Martin Linen, 430 U. S., at 570.[9] We hold, therefore, that the trial judge's granting of petitioners' demurrer was an acquittal under the Double Jeopardy Clause, and that the Commonwealth's appeal was barred because reversal would have led to further trial proceedings. The judgment of the Pennsylvania Supreme Court is Reversed.

At the close of the prosecution's case in chief, the trial court dismissed certain charges against petitioners on the ground that the evidence presented was legally insufficient to support a conviction. The question presented is whether the Double Jeopardy Clause bars the prosecution from appealing this ruling. I Petitioners, husband and wife, owned a building housing a restaurant and some apartments that burned under suspicious circumstances, killing two of the tenants. Petitioners were charged with various crimes in connection with this fire, including criminal homicide, reckless endangerment, and causing a catastrophe.[1] They opted for a bench trial, and at the close of the prosecution's case in chief challenged the sufficiency of the evidence by filing a demurrer pursuant to Pennsylvania Rule of Criminal Procedure 1124(a)(1).[2] The trial court sustained petitioners' demurrer to charges of murder, voluntary manslaughter, and causing a catastrophe, stating: "As the trier of fact and law, the court was not satisfied, after considering all of the facts together with all reasonable *142 inferences which the Commonwealth's evidence tended to prove, that there was sufficient evidence from which it could be concluded that either of the defendants was guilty beyond a reasonable doubt of setting or causing to be set the fire in question." App. to Pet. for Cert. 101a-102a. The Commonwealth sought review of this ruling in the Superior Court of Pennsylvania, but a panel of that court quashed the appeal, holding it barred by the Double Jeopardy Clause. The Superior Court granted review en banc and affirmed. Citing a number of our decisions as controlling authority, the court set out two relevant principles of law. First, a judgment that the evidence is legally insufficient to sustain a guilty verdict constitutes an acquittal for purposes of the Double Jeopardy Clause. See, e. g., United ; ; ; United ; Second, when a trial court enters such a judgment, the Double Jeopardy Clause bars an appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into further proceedings devoted to the resolution of factual issues going to the elements of the offense charged. The Superior Court concluded that because reversal of the trial court's granting of petitioners' demurrer would necessitate further trial proceedings, the Commonwealth's appeal was improper under Martin The Commonwealth appealed to the Supreme Court of Pennsylvania, which reversed.[3] The court relied heavily on the statement in United that a trial *143 judge's ruling in a defendant's favor constitutes an acquittal "only when `the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.' " (quoting Martin ). The court gave the following explanation of why the trial court's ruling on petitioners' demurrer is not within this definition of an acquittal: "In deciding whether to grant a demurrer, the court does not determine whether or not the defendant is guilty on such evidence, but determines whether the evidence, if credited by the jury, is legally sufficient to warrant the conclusion that the defendant is guilty beyond a reasonable doubt. "Hence, by definition, a demurrer is not a factual determination. [T]he question before the trial judge in ruling on a demurrer remains purely one of law. "We conclude, therefore, that a demurrer is not the functional equivalent of an acquittal, and that the Commonwealth has the right to appeal from an order sustaining defendant's demurrer to its case-in-chief. In such a situation, the defendant himself elects to seek dismissal on grounds unrelated to his factual guilt or innocence." Accordingly, the Pennsylvania Supreme Court remanded the case to the Superior Court for a determination on the merits of the appeal. We granted certiorari, and now reverse.[4] *144 II The Pennsylvania Supreme Court erred in holding that, for purposes of considering a plea of double jeopardy, a defendant who demurs at the close of the prosecution's case in chief "elects to seek dismissal on grounds unrelated to his factual guilt or innocence." What the demurring defendant seeks is a ruling that as a matter of law the State's evidence is insufficient to establish his factual guilt.[5] Our past decisions, which we are not inclined to reconsider at this time, hold that such a ruling is an acquittal under the Double Jeopardy Clause. See, e. g., United supra.[6] United does not overturn these precedents; indeed, it plainly indicates that the category of acquittals includes "judgment[s] by the court that the evidence is insufficient to convict." 437 U.S., at[7] *145 The Commonwealth argues that its appeal is nonetheless permissible under Justices of Boston Municipal because resumption of petitioners' bench trial following a reversal on appeal would simply constitute "continuing jeopardy." Brief for Respondent 87-88. But Lydon teaches that "[a]cquittals, unlike convictions, terminate the initial jeopardy." Thus, whether the trial is to a jury or to the bench, subjecting the defendant to postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause.[8] When a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose. Allowing such an appeal would frustrate the interest of the accused in having an end to the proceedings against him. The Superior Court was correct, therefore, in holding that the Double Jeopardy Clause bars a postacquittal appeal by the prosecution *146 not only when it might result in a second trial, but also if reversal would translate into " `further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.' " Martin[9] We hold, therefore, that the trial judge's granting of petitioners' demurrer was an acquittal under the Double Jeopardy Clause, and that the Commonwealth's appeal was barred because reversal would have led to further trial proceedings. The judgment of the Pennsylvania Supreme Court is Reversed.

Justice Rehnquist

majority

Arthur Andersen LLP v. United States

https://www.courtlistener.com/opinion/142899/arthur-andersen-llp-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/142899/

2004-051

As Enron Corporation's financial difficulties became public in 2001, petitioner Arthur Andersen LLP, Enron's auditor, instructed its employees to destroy documents pursuant to its document retention policy. A jury found that this action made petitioner guilty of violating 18 U.S. C. §§ 1512(b) (2)(A) and (B). These sections make it a crime to "knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person . . . with intent to . . . cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding."[1] The Court of Appeals for the Fifth Circuit affirmed. We hold that the jury instructions failed to convey properly the elements of a "corrup[t] persua[sion]" conviction under § 1512(b), and therefore reverse. Enron Corporation, during the 1990's, switched its business from operation of natural gas pipelines to an energy conglomerate, a move that was accompanied by aggressive accounting practices and rapid growth. Petitioner audited Enron's publicly filed financial statements and provided internal audit and consulting services to it. Petitioner's "engagement *699 team" for Enron was headed by David Duncan. Beginning in 2000, Enron's financial performance began to suffer, and, as 2001 wore on, worsened.[2] On August 14, 2001, Jeffrey Skilling, Enron's Chief Executive Officer (CEO), unexpectedly resigned. Within days, Sherron Watkins, a senior accountant at Enron, warned Kenneth Lay, Enron's newly reappointed CEO, that Enron could "implode in a wave of accounting scandals." Brief for United States 2. She likewise informed Duncan and Michael Odom, one of petitioner's partners who had supervisory responsibility over Duncan, of the looming problems. On August 28, an article in the Wall Street Journal suggested improprieties at Enron, and the SEC opened an informal investigation. By early September, petitioner had formed an Enron "crisis-response" team, which included Nancy Temple, an in-house counsel.[3] On October 8, petitioner retained outside counsel to represent it in any litigation that might arise from the Enron matter. The next day, Temple discussed Enron with other in-house counsel. Her notes from that meeting reflect that "some SEC investigation" is "highly probable." Id., at 3. On October 10, Odom spoke at a general training meeting attended by 89 employees, including 10 from the Enron engagement *700 team. Odom urged everyone to comply with the firm's document retention policy.[4] He added: "`[I]f it's destroyed in the course of [the] normal policy and litigation is filed the next day, that's great. . . . [W]e've followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.'" 374 F.3d 281, 286 (CA5 2004). On October 12, Temple entered the Enron matter into her computer, designating the "Type of Potential Claim" as "Professional Practice — Government/Regulatory Inv[estigation]." App. JA-127. Temple also e-mailed Odom, suggesting that he "`remin[d] the engagement team of our documentation and retention policy.'" Brief for United States 6. On October 16, Enron announced its third quarter results. That release disclosed a $1.01 billion charge to earnings.[5] The following day, the SEC notified Enron by letter that it had opened an investigation in August and requested certain information and documents. On October 19, Enron forwarded a copy of that letter to petitioner. *701 On the same day, Temple also sent an e-mail to a member of petitioner's internal team of accounting experts and attached a copy of the document policy. On October 20, the Enron crisis-response team held a conference call, during which Temple instructed everyone to "[m]ake sure to follow the [document] policy." Brief for United States 7 (brackets in original). On October 23, Enron CEO Lay declined to answer questions during a call with analysts because of "potential lawsuits, as well as the SEC inquiry." Ibid. After the call, Duncan met with other Andersen partners on the Enron engagement team and told them that they should ensure team members were complying with the document policy. Another meeting for all team members followed, during which Duncan distributed the policy and told everyone to comply. These, and other smaller meetings, were followed by substantial destruction of paper and electronic documents. On October 26, one of petitioner's senior partners circulated a New York Times article discussing the SEC's response to Enron. His e-mail commented that "the problems are just beginning and we will be in the cross hairs. The marketplace is going to keep the pressure on this and is going to force the SEC to be tough." Id., at 8. On October 30, the SEC opened a formal investigation and sent Enron a letter that requested accounting documents. Throughout this time period, the document destruction continued, despite reservations by some of petitioner's managers.[6] On November 8, Enron announced that it would *702 issue a comprehensive restatement of its earnings and assets. Also on November 8, the SEC served Enron and petitioner with subpoenas for records. On November 9, Duncan's secretary sent an e-mail that stated: "Per Dave— No more shredding. . . . We have been officially served for our documents." Id., at 10. Enron filed for bankruptcy less than a month later. Duncan was fired and later pleaded guilty to witness tampering. In March 2002, petitioner was indicted in the Southern District of Texas on one count of violating §§ 1512(b)(2)(A) and (B). The indictment alleged that, between October 10 and November 9, 2001, petitioner "did knowingly, intentionally and corruptly persuade . . . other persons, to wit: [petitioner's] employees, with intent to cause" them to withhold documents from, and alter documents for use in, "official proceedings, namely: regulatory and criminal proceedings and investigations." App. JA-139. A jury trial followed. When the case went to the jury, that body deliberated for seven days and then declared that it was deadlocked. The District Court delivered an "Allen charge," Allen v. United States, 164 U.S. 492 (1896), and, after three more days of deliberation, the jury returned a guilty verdict. The District Court denied petitioner's motion for a judgment of acquittal. The Court of Appeals for the Fifth Circuit affirmed. 374 F.3d, at 284. It held that the jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding"; that the jury need not find any consciousness of wrongdoing; and that there was no reversible error. Because of a split of authority regarding the meaning of § 1512(b), we granted certiorari.[7] 543 U.S. 1042 (2005). *703 Chapter 73 of Title 18 of the United States Code provides criminal sanctions for those who obstruct justice. Sections 1512(b)(2)(A) and (B), part of the witness tampering provisions, provide in relevant part: "Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . cause or induce any person to . . . withhold testimony, or withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding . . . shall be fined under this title or imprisoned not more than ten years, or both." In this case, our attention is focused on what it means to "knowingly . . . corruptly persuad[e]" another person "with intent to . . . cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding." "We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U.S. 207 (1985), and out of concern that `a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,' McBoyle v. United States, 283 U.S. 25, 27 (1931)." United States v. Aguilar, 515 U.S. 593, 600 (1995). Such restraint is particularly appropriate here, where the act underlying the conviction—"persua[sion]"—is by itself innocuous. Indeed, "persuad[ing]" a person "with intent to . . . cause" that person to "withhold" testimony or documents from a Government proceeding or Government official *704 is not inherently malign.[8] Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see U. S. Const., Amdt. 5, or a wife who persuades her husband not to disclose marital confidences, see Trammel v. United States, 445 U.S. 40 (1980). Nor is it necessarily corrupt for an attorney to "persuad[e]" a client "with intent to . . . cause" that client to "withhold" documents from the Government. In Upjohn Co. v. United States, 449 U.S. 383 (1981), for example, we held that Upjohn was justified in withholding documents that were covered by the attorney-client privilege from the Internal Revenue Service (IRS). See id., at 395. No one would suggest that an attorney who "persuade[d]" Upjohn to take that step acted wrongfully, even though he surely intended that his client keep those documents out of the IRS' hands. "Document retention policies," which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. See generally Chase, To Shred or Not to Shred: Document Retention Policies and Federal Obstruction of Justice Statutes, 8 Ford. J. Corp. & Fin. L. 721 (2003). It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances. Acknowledging this point, the parties have largely focused their attention on the word "corruptly" as the key to what may or may not lawfully be done in the situation presented here. Section 1512(b) punishes not just "corruptly persuad[ing]" another, but "knowingly . . . corruptly persuad[ing]" another. (Emphasis added.) The Government suggests that "knowingly" does not modify "corruptly persuades," *705 but that is not how the statute most naturally reads. It provides the mens rea — "knowingly" — and then a list of acts — "uses intimidation or physical force, threatens, or corruptly persuades." We have recognized with regard to similar statutory language that the mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain. See United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994) (recognizing that the "most natural grammatical reading" of 18 U.S. C. §§ 2252(a)(1) and (2) "suggests that the term `knowingly' modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces"); see also Liparota v. United States, 471 U.S. 419 (1985). The Government suggests that it is "questionable whether Congress would employ such an inelegant formulation as `knowingly . . . corruptly persuades.'" Brief for United States 35, n. 18. Long experience has not taught us to share the Government's doubts on this score, and we must simply interpret the statute as written. The parties have not pointed us to another interpretation of "knowingly . . . corruptly" to guide us here.[9] In any event, the natural meaning of these terms provides a clear answer. See Bailey v. United States, 516 U.S. 137, 144-145 (1995). "[K]nowledge" and "knowingly" are normally associated with awareness, understanding, or consciousness. See Black's Law Dictionary 888 (8th ed. 2004) (hereinafter Black's); Webster's Third New International Dictionary 1252-1253 (1993) (hereinafter Webster's 3d); American Heritage Dictionary of the English Language 725 (1981) (hereinafter Am. Hert.). "Corrupt" and "corruptly" are normally associated with wrongful, immoral, depraved, or evil. See Black's 371; Webster's 3d 512; Am. Hert. 299-300. Joining these meanings together here makes sense both linguistically *706 and in the statutory scheme. Only persons conscious of wrongdoing can be said to "knowingly . . . corruptly persuad[e]." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows § 1512(b) to reach only those with the level of "culpability . . . we usually require in order to impose criminal liability." United States v. Aguilar, 515 U. S., at 602; see also Liparota v. United States, supra, at 426. The outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, "even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty." App. JA-213. The instructions also diluted the meaning of "corruptly" so that it covered innocent conduct. Id., at JA-212. The parties vigorously disputed how the jury would be instructed on "corruptly." The District Court based its instruction on the definition of that term found in the Fifth Circuit Pattern Jury Instruction for § 1503. This pattern instruction defined "corruptly" as "`knowingly and dishonestly, with the specific intent to subvert or undermine the integrity'" of a proceeding. Brief for Petitioner 3, n. 3 (emphasis deleted). The Government, however, insisted on excluding "dishonestly" and adding the term "impede" to the phrase "subvert or undermine." Ibid. (internal quotation marks omitted). The District Court agreed over petitioner's objections, and the jury was told to convict if it found petitioner intended to "subvert, undermine, or impede" governmental factfinding by suggesting to its employees that they enforce the document retention policy. App. JA-212. These changes were significant. No longer was any type of "dishonest[y]" necessary to a finding of guilt, and it was enough for petitioner to have simply "impede[d]" the Government's factfinding ability. As the Government conceded *707 at oral argument, "`[i]mpede'" has broader connotations than "`subvert'" or even "`[u]ndermine,'" see Tr. of Oral Arg. 38, and many of these connotations do not incorporate any "corrupt[ness]" at all. The dictionary defines "impede" as "to interfere with or get in the way of the progress of" or "hold up" or "detract from." Webster's 3d 1132. By definition, anyone who innocently persuades another to withhold information from the Government "get[s] in the way of the progress of" the Government. With regard to such innocent conduct, the "corruptly" instructions did no limiting work whatsoever. The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the "persua[sion]" to destroy documents and any particular proceeding.[10] In resisting any type of nexus element, the Government relies heavily on § 1512(e)(1), which states that an official proceeding "need not be pending or about to be instituted at the time of the offense." It is, however, one thing to say that a proceeding "need not be pending or about to be instituted at the time of the offense," and *708 quite another to say a proceeding need not even be foreseen. A "knowingly . . . corrup[t] persaude[r]" cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. We faced a similar situation in Aguilar, supra. Respondent Aguilar lied to a Federal Bureau of Investigation agent in the course of an investigation and was convicted of "`corruptly endeavor[ing] to influence, obstruct, and impede [a] . . . grand jury investigation'" under § 1503. 515 U.S., at 599. All the Government had shown was that Aguilar had uttered false statements to an investigating agent "who might or might not testify before a grand jury." Id., at 600. We held that § 1503 required something more — specifically, a "nexus" between the obstructive act and the proceeding. Id., at 599-600. "[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding," we explained, "he lacks the requisite intent to obstruct." Id., at 599. For these reasons, the jury instructions here were flawed in important respects. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

As Enron Corporation's financial difficulties became public in 2001, petitioner Arthur Andersen LLP, Enron's auditor, instructed its employees to destroy documents pursuant to its document retention policy. A jury found that this action made petitioner guilty of violating 18 U.S. C. 1512(b) (2)(A) and (B). These sections make it a crime to "knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person with intent to cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding."[1] The Court of Appeals for the Fifth Circuit affirmed. We hold that the jury instructions failed to convey properly the elements of a "corrup[t] persua[sion]" conviction under 1512(b), and therefore reverse. Enron Corporation, during the 1990's, switched its business from operation of natural gas pipelines to an energy conglomerate, a move that was accompanied by aggressive accounting practices and rapid growth. Petitioner audited Enron's publicly filed financial statements and provided internal audit and consulting services to it. Petitioner's "engagement *699 team" for Enron was headed by David Duncan. Beginning in 2000, Enron's financial performance began to suffer, and, as 2001 wore on, worsened.[2] On August 14, 2001, Jeffrey Skilling, Enron's Chief Executive Officer (CEO), unexpectedly resigned. Within days, Sherron Watkins, a senior accountant at Enron, warned Kenneth Lay, Enron's newly reappointed CEO, that Enron could "implode in a wave of accounting scandals." Brief for United 2. She likewise informed Duncan and Michael Odom, one of petitioner's partners who had supervisory responsibility over Duncan, of the looming problems. On August 28, an article in the Wall Street Journal suggested improprieties at Enron, and the SEC opened an informal investigation. By early September, petitioner had formed an Enron "crisis-response" team, which included Nancy Temple, an in-house counsel.[3] On October 8, petitioner retained outside counsel to represent it in any litigation that might arise from the Enron matter. The next day, Temple discussed Enron with other in-house counsel. Her notes from that meeting reflect that "some SEC investigation" is "highly probable." On October 10, Odom spoke at a general training meeting attended by 89 employees, including 10 from the Enron engagement *700 team. Odom urged everyone to comply with the firm's document retention policy.[4] He added: "`[I]f it's destroyed in the course of [the] normal policy and litigation is filed the next day, that's great. [W]e've followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.'" On October 12, Temple entered the Enron matter into her computer, designating the "Type of Potential Claim" as "Professional Practice — Government/Regulatory Inv[estigation]." App. JA-1. Temple also e-mailed Odom, suggesting that he "`remin[d] the engagement team of our documentation and retention policy.'" Brief for United 6. On October 16, Enron announced its third quarter results. That release disclosed a $1.01 billion charge to earnings.[5] The following day, the SEC notified Enron by letter that it had opened an investigation in August and requested certain information and documents. On October 19, Enron forwarded a copy of that letter to petitioner. *701 On the same day, Temple also sent an e-mail to a member of petitioner's internal team of accounting experts and attached a copy of the document policy. On October 20, the Enron crisis-response team held a conference call, during which Temple instructed everyone to "[m]ake sure to follow the [document] policy." Brief for United 7 (brackets in original). On October 23, Enron CEO Lay declined to answer questions during a call with analysts because of "potential lawsuits, as well as the SEC inquiry." After the call, Duncan met with other Andersen partners on the Enron engagement team and told them that they should ensure team members were complying with the document policy. Another meeting for all team members followed, during which Duncan distributed the policy and told everyone to comply. These, and other smaller meetings, were followed by substantial destruction of paper and electronic documents. On October 26, one of petitioner's senior partners circulated a New York Times article discussing the SEC's response to Enron. His e-mail commented that "the problems are just beginning and we will be in the cross hairs. The marketplace is going to keep the pressure on this and is going to force the SEC to be tough." On October 30, the SEC opened a formal investigation and sent Enron a letter that requested accounting documents. Throughout this time period, the document destruction continued, despite reservations by some of petitioner's managers.[6] On November 8, Enron announced that it would *702 issue a comprehensive restatement of its earnings and assets. Also on November 8, the SEC served Enron and petitioner with subpoenas for records. On November 9, Duncan's secretary sent an e-mail that stated: "Per Dave— No more shredding. We have been officially served for our documents." Enron filed for bankruptcy less than a month later. Duncan was fired and later pleaded guilty to witness tampering. In March 2002, petitioner was indicted in the Southern District of Texas on one count of violating 1512(b)(2)(A) and (B). The indictment alleged that, between October 10 and November 9, 2001, petitioner "did knowingly, intentionally and corruptly persuade other persons, to wit: [petitioner's] employees, with intent to cause" them to withhold documents from, and alter documents for use in, "official proceedings, namely: regulatory and criminal proceedings and investigations." App. JA-139. A jury trial followed. When the case went to the jury, that body deliberated for seven days and then declared that it was deadlocked. The District Court delivered an "Allen charge," and, after three more days of deliberation, the jury returned a guilty verdict. The District Court denied petitioner's motion for a judgment of acquittal. The Court of Appeals for the Fifth Circuit affirmed. It held that the jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding"; that the jury need not find any consciousness of wrongdoing; and that there was no reversible error. Because of a split of authority regarding the meaning of 1512(b), we granted certiorari.[7] *703 Chapter 73 of Title 18 of the United Code provides criminal sanctions for those who obstruct justice. Sections 1512(b)(2)(A) and (B), part of the witness tampering provisions, provide in relevant part: "Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to cause or induce any person to withhold testimony, or withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding shall be fined under this title or imprisoned not more than ten years, or both." In this case, our attention is focused on what it means to "knowingly corruptly persuad[e]" another person "with intent to cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding." "We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, and out of concern that `a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,'" United Such restraint is particularly appropriate here, where the act underlying the conviction—"persua[sion]"—is by itself innocuous. Indeed, "persuad[ing]" a person "with intent to cause" that person to "withhold" testimony or documents from a Government proceeding or Government official *704 is not inherently malign.[8] Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see U. S. Const., Amdt. 5, or a wife who persuades her husband not to disclose marital confidences, see Nor is it necessarily corrupt for an attorney to "persuad[e]" a client "with intent to cause" that client to "withhold" documents from the Government. In Upjohn for example, we held that Upjohn was justified in withholding documents that were covered by the attorney-client privilege from the Internal Revenue Service (IRS). See 95. No one would suggest that an attorney who "persuade[d]" Upjohn to take that step acted wrongfully, even though he surely intended that his client keep those documents out of the IRS' hands. "Document retention policies," which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. See generally Chase, To Shred or Not to Shred: Document Retention Policies and Federal Obstruction of Justice Statutes, 8 Ford. J. Corp. & Fin. L. 721 (2003). It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances. Acknowledging this point, the parties have largely focused their attention on the word "corruptly" as the key to what may or may not lawfully be done in the situation presented here. Section 1512(b) punishes not just "corruptly persuad[ing]" another, but "knowingly corruptly persuad[ing]" another. (Emphasis added.) The Government suggests that "knowingly" does not modify "corruptly persuades," *705 but that is not how the statute most naturally reads. It provides the mens rea — "knowingly" — and then a list of acts — "uses intimidation or physical force, threatens, or corruptly persuades." We have recognized with regard to similar statutory language that the mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain. See United (recognizing that the "most natural grammatical reading" of 18 U.S. C. 2252(a)(1) and (2) "suggests that the term `knowingly' modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces"); see also The Government suggests that it is "questionable whether Congress would employ such an inelegant formulation as `knowingly corruptly persuades.'" Brief for United 35, n. 18. Long experience has not taught us to share the Government's doubts on this score, and we must simply interpret the statute as written. The parties have not pointed us to another interpretation of "knowingly corruptly" to guide us here.[9] In any event, the natural meaning of these terms provides a clear answer. See "[K]nowledge" and "knowingly" are normally associated with awareness, understanding, or consciousness. See Black's Law Dictionary 888 (hereinafter Black's); Webster's Third New International Dictionary 1252-1253 (1993) (hereinafter Webster's 3d); American Heritage Dictionary of the English Language 725 (hereinafter Am. Hert.). "Corrupt" and "corruptly" are normally associated with wrongful, immoral, depraved, or evil. See Black's 371; Webster's 3d 512; Am. Hert. 299-300. Joining these meanings together here makes sense both linguistically *706 and in the statutory scheme. Only persons conscious of wrongdoing can be said to "knowingly corruptly persuad[e]." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows 1512(b) to reach only those with the level of "culpability we usually require in order to impose criminal liability." United ; see also The outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, "even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty." App. JA-213. The instructions also diluted the meaning of "corruptly" so that it covered innocent conduct. at JA-212. The parties vigorously disputed how the jury would be instructed on "corruptly." The District Court based its instruction on the definition of that term found in the Fifth Circuit Pattern Jury Instruction for This pattern instruction defined "corruptly" as "`knowingly and dishonestly, with the specific intent to subvert or undermine the integrity'" of a proceeding. Brief for Petitioner 3, n. 3 (emphasis deleted). The Government, however, insisted on excluding "dishonestly" and adding the term "impede" to the phrase "subvert or undermine." The District Court agreed over petitioner's objections, and the jury was told to convict if it found petitioner intended to "subvert, undermine, or impede" governmental factfinding by suggesting to its employees that they enforce the document retention policy. App. JA-212. These changes were significant. No longer was any type of "dishonest[y]" necessary to a finding of guilt, and it was enough for petitioner to have simply "impede[d]" the Government's factfinding ability. As the Government conceded *707 at oral argument, "`[i]mpede'" has broader connotations than "`subvert'" or even "`[u]ndermine,'" see Tr. of Oral Arg. 38, and many of these connotations do not incorporate any "corrupt[ness]" at all. The dictionary defines "impede" as "to interfere with or get in the way of the progress of" or "hold up" or "detract from." Webster's 3d 1132. By definition, anyone who innocently persuades another to withhold information from the Government "get[s] in the way of the progress of" the Government. With regard to such innocent conduct, the "corruptly" instructions did no limiting work whatsoever. The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the "persua[sion]" to destroy documents and any particular proceeding.[10] In resisting any type of nexus element, the Government relies heavily on 1512(e)(1), which states that an official proceeding "need not be pending or about to be instituted at the time of the offense." It is, however, one thing to say that a proceeding "need not be pending or about to be instituted at the time of the offense," and *708 quite another to say a proceeding need not even be foreseen. A "knowingly corrup[t] persaude[r]" cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. We faced a similar situation in Respondent lied to a Federal Bureau of Investigation agent in the course of an investigation and was convicted of "`corruptly endeavor[ing] to influence, obstruct, and impede [a] grand jury investigation'" under All the Government had shown was that had uttered false statements to an investigating agent "who might or might not testify before a grand jury." at We held that 1503 required something more — specifically, a "nexus" between the obstructive act and the proceeding. -. "[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding," we explained, "he lacks the requisite intent to obstruct." For these reasons, the jury instructions here were flawed in important respects. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Scalia

dissenting

Stewart Organization, Inc. v. Ricoh Corp.

https://www.courtlistener.com/opinion/112115/stewart-organization-inc-v-ricoh-corp/

https://www.courtlistener.com/api/rest/v3/clusters/112115/

1987-125

I agree with the opinion of the Court that the initial question before us is whether the validity between the parties of a contractual forum-selection clause falls within the scope of 28 U.S. C. § 1404(a). See ante, at 26-27, 29. I cannot agree, however, that the answer to that question is yes. Nor do I believe that the federal courts can, consistent with the twin-aims test of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), fashion a judge-made rule to govern this issue of contract validity. *34 I When a litigant asserts that state law conflicts with a federal procedural statute or formal Rule of Procedure, a court's first task is to determine whether the disputed point in question in fact falls within the scope of the federal statute or Rule. In this case, the Court must determine whether the scope of § 1404(a) is sufficiently broad to cause a direct collision with state law or implicitly to control the issue before the Court, i. e., validity between the parties of the forum-selection clause, thereby leaving no room for the operation of state law. See Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4-5 (1987). I conclude that it is not. Although the language of § 1404(a) provides no clear answer, in my view it does provide direction. The provision vests the district courts with authority to transfer a civil action to another district "[f]or the convenience of parties and witnesses, in the interest of justice." This language looks to the present and the future. As the specific reference to convenience of parties and witnesses suggests, it requires consideration of what is likely to be just in the future, when the case is tried, in light of things as they now stand. Accordingly, the courts in applying § 1404(a) have examined a variety of factors, each of which pertains to facts that currently exist or will exist: e. g., the forum actually chosen by the plaintiff, the current convenience of the parties and witnesses, the current location of pertinent books and records, similar litigation pending elsewhere, current docket conditions, and familiarity of the potential courts with governing state law. See 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §§ 3848-3849, 3851, 3853-3854 (2d ed. 1986). In holding that the validity between the parties of a forum-selection clause falls within the scope of § 1404(a), the Court inevitably imports, in my view without adequate textual foundation, a new retrospective element into the court's deliberations, requiring examination of what the *35 facts were concerning, among other things, the bargaining power of the parties and the presence or absence of overreaching at the time the contract was made. See ante, at 28, and n. 7, 29. The Court largely attempts to avoid acknowledging the novel scope it gives to § 1404(a) by casting the issue as how much weight a district court should give a forum-selection clause as against other factors when it makes its determination under § 1404(a). I agree that if the weight-among-factors issue were before us, it would be governed by § 1404 (a). That is because, while the parties may decide who between them should bear any inconvenience, only a court can decide how much weight should be given under § 1404(a) to the factor of the parties' convenience as against other relevant factors such as the convenience of witnesses. But the Court's description of the issue begs the question: what law governs whether the forum-selection clause is a valid or invalid allocation of any inconvenience between the parties. If it is invalid, i. e., should be voided, between the parties, it cannot be entitled to any weight in the § 1404(a) determination. Since under Alabama law the forum-selection clause should be voided, see Redwing Carriers, Inc. v. Foster, 382 So. 2d 554, 556 (Ala. 1980), in this case the question of what weight should be given the forum-selection clause can be reached only if as a preliminary matter federal law controls the issue of the validity of the clause between the parties.[*] *36 Second, § 1404(a) was enacted against the background that issues of contract, including a contract's validity, are nearly always governed by state law. It is simply contrary to the practice of our system that such an issue should be wrenched from state control in absence of a clear conflict with federal law or explicit statutory provision. It is particularly instructive in this regard to compare § 1404(a) with another provision, enacted by the same Congress a year earlier, that did pre-empt state contract law, and in precisely the same field of agreement regarding forum selection. Section 2 of the Federal Arbitration Act, 9 U.S. C. § 2, provides: "A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." We have said that an arbitration clause is a "kind of forum-selection clause," Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974), and the contrast between this explicit pre-emption *37 of state contract law on the subject and § 1404(a) could not be more stark. Section 1404(a) is simply a venue provision that nowhere mentions contracts or agreements, much less that the validity of certain contracts or agreements will be matters of federal law. It is difficult to believe that state contract law was meant to be pre-empted by this provision that we have said "should be regarded as a federal judicial housekeeping measure," Van Dusen v. Barrack, 376 U.S. 612, 636-637 (1964), that we have said did not change "the relevant factors" which federal courts used to consider under the doctrine of forum non conveniens, Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955), and that we have held can be applied retroactively because it is procedural, Ex parte Collett, 337 U.S. 55, 71 (1949). It seems to me the generality of its language — "[f]or the convenience of parties and witnesses, in the interest of justice" — is plainly insufficient to work the great change in law asserted here. Third, it has been common ground in this Court since Erie, 304 U. S., at 74-77, that when a federal procedural statute or Rule of Procedure is not on point, substantial uniformity of predictable outcome between federal and state courts in adjudicating claims should be striven for. See also Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). This rests upon a perception of the constitutional and congressional plan underlying the creation of diversity and pendent jurisdiction in the lower federal courts, which should quite obviously be carried forward into our interpretation of ambiguous statutes relating to the exercise of that jurisdiction. We should assume, in other words, when it is fair to do so, that Congress is just as concerned as we have been to avoid significant differences between state and federal courts in adjudicating claims. Cf. Southland Corp. v. Keating, 465 U.S. 1, 15 (1984) (interpreting Federal Arbitration Act to apply to claims brought in state courts in order to discourage forum shopping). Thus, in deciding whether a federal procedural statute or Rule of Procedure encompasses a particular *38 issue, a broad reading that would create significant disuniformity between state and federal courts should be avoided if the text permits. See, e. g., Walker v. Armco Steel Corp., 446 U.S. 740, 750-751 (1980); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 556 (1949); Palmer v. Hoffman, 318 U.S. 109, 117 (1943); cf. P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 828 (3d ed. 1988) ("The Supreme Court has continued since Hanna to interpret the federal rules to avoid conflict with important state regulatory policies"). As I have shown, the interpretation given § 1404(a) by the Court today is neither the plain nor the more natural meaning; at best, § 1404(a) is ambiguous. I would therefore construe it to avoid the significant encouragement to forum shopping that will inevitably be provided by the interpretation the Court adopts today. II Since no federal statute or Rule of Procedure governs the validity of a forum-selection clause, the remaining issue is whether federal courts may fashion a judge-made rule to govern the question. If they may not, the Rules of Decision Act, 28 U.S. C. § 1652, mandates use of state law. See Erie, supra, at 72-73; Hanna v. Plumer, 380 U.S. 460, 471-472 (1965) (if federal courts lack authority to fashion a rule, "state law must govern because there can be no other law"); DelCostello v. Teamsters, 462 U.S. 151, 174, n. 1 (1983) (O'CONNOR, J., dissenting) (Rules of Decision Act "simply requires application of state law unless federal law applies"); see also id., at 159, n. 13. In general, while interpreting and applying substantive law is the essence of the "judicial Power" created under Article III of the Constitution, that power does not encompass the making of substantive law. Cf. Erie, supra, at 78-79. Whatever the scope of the federal courts' authority to create federal common law in other areas, it is plain that the mere *39 fact that petitioner company here brought an antitrust claim, ante, at 24, does not empower the federal courts to make common law on the question of the validity of the forum-selection clause. See Campbell v. Haverhill, 155 U.S. 610, 616 (1895) (Rules of Decision Act "itself neither contains nor suggests . . . a distinction" between federal-question cases and diversity cases); DelCostello, supra, at 173, n. 1 (STEVENS, J., dissenting) (same); cf. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981). The federal courts do have authority, however, to make procedural rules that govern the practice before them. See 28 U.S. C. § 2071 (federal courts may make rules "for the conduct of their business"); Fed. Rule Civ. Proc. 83 (districts courts have authority to "regulate their practice"); see generally Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941). In deciding what is substantive and what is procedural for these purposes, we have adhered to a functional test based on the "twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." Hanna, supra, at 468; see also ante, at 27, n. 6; Walker v. Armco Steel Corp., supra, at 747. Moreover, although in reviewing the validity of a federal procedural statute or Rule of Procedure we inquire only whether Congress or the rulemakers have trespassed beyond the wide latitude given them to determine that a matter is procedural, see Burlington Northern R. Co. v. Woods, 480 U. S., at 5; Hanna, supra, at 471-474, in reviewing the lower courts' application of the twin-aims test we apply our own judgment as a matter of law. Under the twin-aims test, I believe state law controls the question of the validity of a forum-selection clause between the parties. The Eleventh Circuit's rule clearly encourages forum shopping. Venue is often a vitally important matter, as is shown by the frequency with which parties contractually provide for and litigate the issue. Suit might well not be pursued, or might not be as successful, in a significantly less *40 convenient forum. Transfer to such a less desirable forum is, therefore, of sufficient import that plaintiffs will base their decisions on the likelihood of that eventuality when they are choosing whether to sue in state or federal court. With respect to forum-selection clauses, in a State with law unfavorable to validity, plaintiffs who seek to avoid the effect of a clause will be encouraged to sue in state court, and non-resident defendants will be encouraged to shop for more favorable law by removing to federal court. In the reverse situation — where a State has law favorable to enforcing such clauses — plaintiffs will be encouraged to sue in federal court. This significant encouragement to forum shopping is alone sufficient to warrant application of state law. Cf. Walker v. Armco Steel Corp., supra, at 753 (failure to meet one part of the twin-aims test suffices to warrant application of state law). I believe creating a judge-made rule fails the second part of the twin-aims test as well, producing inequitable administration of the laws. The best explanation of what constitutes inequitable administration of the laws is that found in Erie itself: allowing an unfair discrimination between noncitizens and citizens of the forum state. 304 U.S., at 74-75; see also Hanna, 380 U. S., at 468, n. 9. Whether discrimination is unfair in this context largely turns on how important is the matter in question. See id., at 467-468, and n. 9. The decision of an important legal issue should not turn on the accident of diversity of citizenship, see, e. g., Walker, supra, at 753, or the presence of a federal question unrelated to that issue. It is difficult to imagine an issue of more importance, other than one that goes to the very merits of the lawsuit, than the validity of a contractual forum-selection provision. Certainly, the Erie doctrine has previously been held to require the application of state law on subjects of similar or obviously lesser importance. See, e. g., Walker, supra (whether filing of complaint or service tolls statute of limitations); Bernhardt v. Polygraphic Co. of America, 350 U. S. *41 198, 202-204 (1956) (arbitrability); Cohen v. Beneficial Industrial Loan Corp., 337 U. S., at 555-556 (indemnity bond for litigation expenses). Nor can or should courts ignore that issues of contract validity are traditionally matters governed by state law. For the reasons stated, I respectfully dissent.

I agree with the opinion of the Court that the initial question before us is whether the validity between the parties of a contractual forum-selection clause falls within the scope of 28 U.S. C. 1404(a). See ante, at 26-27, 29. I cannot agree, however, that the answer to that question is yes. Nor do I believe that the federal courts can, consistent with the twin-aims test of R. fashion a judge-made rule to govern this issue of contract validity. *34 I When a litigant asserts that state law conflicts with a federal procedural statute or formal Rule of Procedure, a court's first task is to determine whether the disputed point in question in fact falls within the scope of the federal statute or Rule. In this case, the Court must determine whether the scope of 1404(a) is sufficiently broad to cause a direct collision with state law or implicitly to control the issue before the Court, i. e., validity between the parties of the forum-selection clause, thereby leaving no room for the operation of state law. See Burlington Northern R. I conclude that it is not. Although the language of 1404(a) provides no clear answer, in my view it does provide direction. The provision vests the district courts with authority to transfer a civil action to another district "[f]or the convenience of parties and witnesses, in the interest of justice." This language looks to the present and the future. As the specific reference to convenience of parties and witnesses suggests, it requires consideration of what is likely to be just in the future, when the case is tried, in light of things as they now stand. Accordingly, the courts in applying 1404(a) have examined a variety of factors, each of which pertains to facts that currently exist or will exist: e. g., the forum actually chosen by the plaintiff, the current convenience of the parties and witnesses, the current location of pertinent books and records, similar litigation pending elsewhere, current docket conditions, and familiarity of the potential courts with governing state law. See C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3848-3849, 3851, 3853-3854 (2d ed. 1986). In holding that the validity between the parties of a forum-selection clause falls within the scope of 1404(a), the Court inevitably imports, in my view without adequate textual foundation, a new retrospective element into the court's deliberations, requiring examination of what the *35 facts were concerning, among other things, the bargaining power of the parties and the presence or absence of overreaching at the time the contract was made. See ante, at 28, and n. 7, 29. The Court largely attempts to avoid acknowledging the novel scope it gives to 1404(a) by casting the issue as how much weight a district court should give a forum-selection clause as against other factors when it makes its determination under 1404(a). I agree that if the weight-among-factors issue were before us, it would be governed by 1404 (a). That is because, while the parties may decide who between them should bear any inconvenience, only a court can decide how much weight should be given under 1404(a) to the factor of the parties' convenience as against other relevant factors such as the convenience of witnesses. But the Court's description of the issue begs the question: what law governs whether the forum-selection clause is a valid or invalid allocation of any inconvenience between the parties. If it is invalid, i. e., should be voided, between the parties, it cannot be entitled to any weight in the 1404(a) determination. Since under Alabama law the forum-selection clause should be voided, see Redwing Carriers, in this case the question of what weight should be given the forum-selection clause can be reached only if as a preliminary matter federal law controls the issue of the validity of the clause between the parties.[*] *36 Second, 1404(a) was enacted against the background that issues of contract, including a contract's validity, are nearly always governed by state law. It is simply contrary to the practice of our system that such an issue should be wrenched from state control in absence of a clear conflict with federal law or explicit statutory provision. It is particularly instructive in this regard to compare 1404(a) with another provision, enacted by the same Congress a year earlier, that did pre-empt state contract law, and in precisely the same field of agreement regarding forum selection. Section 2 of the Federal Arbitration Act, 9 U.S. C. 2, provides: "A written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." We have said that an arbitration clause is a "kind of forum-selection clause," and the contrast between this explicit pre-emption *37 of state contract law on the subject and 1404(a) could not be more stark. Section 1404(a) is simply a venue provision that nowhere mentions contracts or agreements, much less that the validity of certain contracts or agreements will be matters of federal law. It is difficult to believe that state contract law was meant to be pre-empted by this provision that we have said "should be regarded as a federal judicial housekeeping measure," Van that we have said did not change "the relevant factors" which federal courts used to consider under the doctrine of forum non conveniens, and that we have held can be applied retroactively because it is procedural, Ex parte Collett, It seems to me the generality of its language — "[f]or the convenience of parties and witnesses, in the interest of justice" — is plainly insufficient to work the great change in law asserted here. Third, it has been common ground in this Court since -77, that when a federal procedural statute or Rule of Procedure is not on point, substantial uniformity of predictable outcome between federal and state courts in adjudicating claims should be striven for. See also Klaxon This rests upon a perception of the constitutional and congressional plan underlying the creation of diversity and pendent jurisdiction in the lower federal courts, which should quite obviously be carried forward into our interpretation of ambiguous statutes relating to the exercise of that jurisdiction. We should assume, in other words, when it is fair to do so, that Congress is just as concerned as we have been to avoid significant differences between state and federal courts in adjudicating claims. Cf. Southland Thus, in deciding whether a federal procedural statute or Rule of Procedure encompasses a particular *38 issue, a broad reading that would create significant disuniformity between state and federal courts should be avoided if the text permits. See, e. g., ; ; ; cf. P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 828 (3d ed. 1988) ("The Supreme Court has continued since to interpret the federal rules to avoid conflict with important state regulatory policies"). As I have shown, the interpretation given 1404(a) by the Court today is neither the plain nor the more natural meaning; at best, 1404(a) is ambiguous. I would therefore construe it to avoid the significant encouragement to forum shopping that will inevitably be provided by the interpretation the Court adopts today. II Since no federal statute or Rule of Procedure governs the validity of a forum-selection clause, the remaining issue is whether federal courts may fashion a judge-made rule to govern the question. If they may not, the Rules of Decision Act, 28 U.S. C. 1652, mandates use of state law. See ; 4-472 ; 462 U.S. 1, (Rules of Decision Act "simply requires application of state law unless federal law applies"); see also at 9, n. 13. In general, while interpreting and applying substantive law is the essence of the "judicial Power" created under Article III of the Constitution, that power does not encompass the making of substantive law. Cf. Whatever the scope of the federal courts' authority to create federal common law in other areas, it is plain that the mere *39 fact that petitioner company here brought an antitrust claim, ante, at 24, does not empower the federal courts to make common law on the question of the validity of the forum-selection clause. See 5 U.S. 610, ; (same); cf. Texas Industries, The federal courts do have authority, however, to make procedural rules that govern the practice before them. See 28 U.S. C. 20 (federal courts may make rules "for the conduct of their business"); Fed. Rule Civ. Proc. 83 (districts courts have authority to "regulate their practice"); see generally In deciding what is substantive and what is procedural for these purposes, we have adhered to a functional test based on the "twin aims of the rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." ; see also ante, at 27, n. 6; Moreover, although in reviewing the validity of a federal procedural statute or Rule of Procedure we inquire only whether Congress or the rulemakers have trespassed beyond the wide latitude given them to determine that a matter is procedural, see Burlington Northern R. ; at 4-474, in reviewing the lower courts' application of the twin-aims test we apply our own judgment as a matter of law. Under the twin-aims test, I believe state law controls the question of the validity of a forum-selection clause between the parties. The Eleventh Circuit's rule clearly encourages forum shopping. Venue is often a vitally important matter, as is shown by the frequency with which parties contractually provide for and litigate the issue. Suit might well not be pursued, or might not be as successful, in a significantly less *40 convenient forum. Transfer to such a less desirable forum is, therefore, of sufficient import that plaintiffs will base their decisions on the likelihood of that eventuality when they are choosing whether to sue in state or federal court. With respect to forum-selection clauses, in a State with law unfavorable to validity, plaintiffs who seek to avoid the effect of a clause will be encouraged to sue in state court, and non-resident defendants will be encouraged to shop for more favorable law by removing to federal court. In the reverse situation — where a State has law favorable to enforcing such clauses — plaintiffs will be encouraged to sue in federal court. This significant encouragement to forum shopping is alone sufficient to warrant application of state law. Cf. I believe creating a judge-made rule fails the second part of the twin-aims test as well, producing inequitable administration of the laws. The best explanation of what constitutes inequitable administration of the laws is that found in itself: allowing an unfair discrimination between noncitizens and citizens of the forum -75; see also 380 U. S., n. 9. Whether discrimination is unfair in this context largely turns on how important is the matter in question. See and n. 9. The decision of an important legal issue should not turn on the accident of diversity of citizenship, see, e. g., or the presence of a federal question unrelated to that issue. It is difficult to imagine an issue of more importance, other than one that goes to the very merits of the lawsuit, than the validity of a contractual forum-selection provision. Certainly, the doctrine has previously been held to require the application of state law on subjects of similar or obviously lesser importance. See, e. g., ; Bernhardt v. Polygraphic Co. of America, 350 U. S. *41 198, 202-204 (1956) (arbitrability); - Nor can or should courts ignore that issues of contract validity are traditionally matters governed by state law. For the reasons stated, I respectfully dissent.

Justice Brennan

majority

Missouri v. Jenkins

https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/

https://www.courtlistener.com/api/rest/v3/clusters/112299/

1988-119

This is the attorney's fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, 488 U.S. 888 (1988), to resolve two questions relating to fees litigation under 90 Stat. 2641, as amended, 42 U.S. C. § 1988. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work? *276 I This litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 7 1/2 months during 1983 and 1984, the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See Jenkins v. Missouri, 807 F.2d 657 (CA8 1986) (en banc), cert. denied, 484 U.S. 816 (1987); Jenkins v. Missouri, 855 F.2d 1295 (CA8 1988), cert. granted, 490 U.S. 1034 (1989). The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C. § 1988.[1] Benson and his associates had devoted 10,875 attorney hours to the litigation, as well as 8,108 hours of paralegal and law clerk time. For the LDF the corresponding *277 figures were 10,854 hours for attorneys and 15,517 hours for paralegals and law clerks. Their fee applications deleted from these totals 3,628 attorney hours and 7,046 paralegal hours allocable to unsuccessful claims against the suburban school districts. With additions for postjudgment monitoring and for preparation of the fee application, the District Court awarded Benson a total of approximately $1.7 million and the LDF $2.3 million. App. to Pet. for Cert. A22-A43. In calculating the hourly rate for Benson's fees the court noted that the market rate in Kansas City for attorneys of Benson's qualifications was in the range of $125 to $175 per hour, and found that "Mr. Benson's rate would fall at the higher end of this range based upon his expertise in the area of civil rights." Id., at A26. It calculated his fees on the basis of an even higher hourly rate of $200, however, because of three additional factors: the preclusion of other employment, the undesirability of the case, and the delay in payment for Benson's services. Id., at A26-A27. The court also took account of the delay in payment in setting the rates for several of Benson's associates by using current market rates rather than those applicable at the time the services were rendered. Id., at A28-A30. For the same reason, it calculated the fees for the LDF attorneys at current market rates. Id., at A33. Both Benson and the LDF employed numerous paralegals, law clerks (generally law students working part time), and recent law graduates in this litigation. The court awarded fees for their work based on Kansas City market rates for those categories. As in the case of the attorneys, it used current rather than historic market rates in order to compensate for the delay in payment. It therefore awarded fees based on hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates. Id., at A29-A31, A34. The Court of Appeals affirmed in all respects. 838 F.2d 260 (CA8 1988). *278 II Our grant of certiorari extends to two issues raised by the State of Missouri. Missouri first contends that a State cannot, consistent with the principle of sovereign immunity this Court has found embodied in the Eleventh Amendment, be compelled to pay an attorney's fee enhanced to compensate for delay in payment. This question requires us to examine the intersection of two of our precedents, Hutto v. Finney, 437 U.S. 678 (1978), and Library of Congress v. Shaw, 478 U.S. 310 (1986).[2] In Hutto v. Finney, the lower courts had awarded attorney's fees against the State of Arkansas, in part pursuant to § 1988, in connection with litigation over the conditions of confinement in that State's prisons. The State contended that any such award was subject to the Eleventh Amendment's constraints on actions for damages payable from a State's treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between "retroactive monetary relief" and "prospective injunctive relief." See Edelman v. Jordan, 415 U.S. 651 (1974); Ex parte Young, 209 U.S. 123 (1908). Attorney's fees, we held, belonged to the latter category, because they constituted reimbursement of "expenses incurred in litigation seeking only prospective relief," rather than "retroactive liability for prelitigation conduct." Hutto, 437 U. S., at 695; see also id., at 690. We explained: "Unlike ordinary `retroactive' relief such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief." Id., at 695, n. 24. Section 1988, we noted, fit easily into the *279 longstanding practice of awarding "costs" against States, for the statute imposed the award of attorney's fees "as part of the costs." Id., at 695-696, citing Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 (1927). After Hutto, therefore, it must be accepted as settled that an award of attorney's fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment. And if the principle of making such an award is beyond the reach of the Eleventh Amendment, the same must also be true for the question of how a "reasonable attorney's fee" is to be calculated. See Hutto, supra, at 696-697. Missouri contends, however, that the principle enunciated in Hutto has been undermined by subsequent decisions of this Court that require Congress to "express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243 (1985); Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468 (1987). See also Dellmuth v. Muth, ante, p. 223; Pennsylvania v. Union Gas Co., ante, p. 1. The flaw in this argument lies in its misreading of the holding of Hutto. It is true that in Hutto we noted that Congress could, in the exercise of its enforcement power under § 5 of the Fourteenth Amendment, set aside the States' immunity from retroactive damages, 437 U.S., at 693, citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), and that Congress intended to do so in enacting § 1988, 437 U.S., at 693-694. But we also made clear that the application of § 1988 to the States did not depend on congressional abrogation of the States' immunity. We did so in rejecting precisely the "clear statement" argument that Missouri now suggests has undermined Hutto. Arkansas had argued that § 1988 did not plainly abrogate the States' immunity; citing Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279 (1973), and Edelman v. Jordan, supra, the State contended that "retroactive liability" could not be imposed on the States "in the absence of an extraordinarily explicit *280 statutory mandate." Hutto, 437 U. S., at 695. We responded as follows: "[T]hese cases [Employees and Edelman] concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney's fees `as part of the costs.' Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity." Ibid. The holding of Hutto, therefore, was not just that Congress had spoken sufficiently clearly to overcome Eleventh Amendment immunity in enacting § 1988, but rather that the Eleventh Amendment did not apply to an award of attorney's fees ancillary to a grant of prospective relief. See Maine v. Thiboutot, 448 U.S. 1, 9, n. 7 (1980). That holding is unaffected by our subsequent jurisprudence concerning the degree of clarity with which Congress must speak in order to override Eleventh Amendment immunity, and we reaffirm it today. Missouri's other line of argument is based on our decision in Library of Congress v. Shaw, supra. Shaw involved an application of the longstanding "no-interest rule," under which interest cannot be awarded against the United States unless it has expressly waived its sovereign immunity. We held that while Congress, in making the Federal Government a potential defendant under Title VII of the Civil Rights Act of 1964, had waived the United States' immunity from suit and from costs including reasonable attorney's fees, it had not waived the Federal Government's traditional immunity from any award of interest. We thus held impermissible a 30 percent increase in the "lodestar" fee to compensate for delay in payment. Because we refused to find in the language of Title VII a waiver of the United States' immunity from interest, Missouri argues, we should likewise conclude that § 1988 is not sufficiently explicit to constitute an abrogation of the States' immunity under the Eleventh Amendment in regard to any award of interest. *281 The answer to this contention is already clear from what we have said about Hutto v. Finney. Since, as we held in Hutto, the Eleventh Amendment does not bar an award of attorney's fees ancillary to a grant of prospective relief, our holding in Shaw has no application, even by analogy.[3] There is no need in this case to determine whether Congress has spoken sufficiently clearly to meet a "clear statement" requirement, and it is therefore irrelevant whether the Eleventh Amendment standard should be, as Missouri contends, as stringent as the one we applied for purposes of the no-interest rule in Shaw. Rather, the issue here — whether the "reasonable attorney's fee" provided for in § 1988 should be calculated in such a manner as to include an enhancement, where appropriate, for delay in payment — is a straightforward *282 matter of statutory interpretation. For this question, it is of no relevance whether the party against which fees are awarded is a State. The question is what Congress intended — not whether it manifested "the clear affirmative intent. . . to waive the sovereign's immunity." Shaw, 478 U. S., at 321.[4] This question is not a difficult one. We have previously explained, albeit in dicta, why an enhancement for delay in payment is, where appropriate, part of a "reasonable attorney's fee." In Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711 (1987), we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment. But we took care to distinguish that risk from the factor of delay: "First is the matter of delay. When plaintiffs' entitlement to attorney's fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later . . . . Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e. g., Sierra Club v. EPA, 248 U. S. App. D. C. 107, 120-121, 769 F.2d 796, 809-810 (1985); Louisville Black Police Officers Organization, Inc. v. Louisville, 700 F.2d 268, 276, 281 (CA6 1983). Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue . . . . We do not suggest . . . that adjustments for delay are *283 inconsistent with the typical fee-shifting statute." Id., at 716. The same conclusion is appropriate under § 1988.[5] Our cases have repeatedly stressed that attorney's fees awarded under this statute are to be based on market rates for the services rendered. See, e. g., Blanchard v. Bergeron, 489 U.S. 87 (1989); Riverside v. Rivera, 477 U.S. 561 (1986); Blum v. Stenson, 465 U.S. 886 (1984). Clearly, compensation received several years after the services were rendered — as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings.[6] We agree, therefore, *284 that an appropriate adjustment for delay in payment — whether by the application of current rather than historic hourly rates or otherwise — is within the contemplation of the statute. To summarize: We reaffirm our holding in Hutto v. Finney that the Eleventh Amendment has no application to an award of attorney's fees, ancillary to a grant of prospective relief, against a State. It follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney's fee under § 1988. An award against a State of a fee that includes such an enhancement for delay is not, therefore, barred by the Eleventh Amendment. III Missouri's second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively "paralegals") at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $15 — which it argued below corresponded to their salaries, benefits, and overhead — would be appropriate, rather than the market rates of $35 to $50. According to Missouri, § 1988 does not authorize billing paralegals' hours at market rates, and doing so produces a "windfall" for the attorney.[7] *285 We begin with the statutory language, which provides simply for "a reasonable attorney's fee as part of the costs." 42 U.S. C. § 1988. Clearly, a "reasonable attorney's fee" cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the "reasonable attorney's fee" provided for by statute should compensate the work of paralegals, as well as that of attorneys. The more difficult question is how the work of paralegals is to be valuated in calculating the overall attorney's fee. The statute specifies a "reasonable" fee for the attorney's work product. In determining how other elements of the attorney's fee are to be calculated, we have consistently looked to the marketplace as our guide to what is "reasonable." In Blum v. Stenson, 465 U.S. 886 (1984), for example, we rejected an argument that attorney's fees for nonprofit legal *286 service organizations should be based on cost. We said: "The statute and legislative history establish that `reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community . . . ." Id., at 895. See also, e. g., Delaware Valley, 483 U. S., at 732 (O'CONNOR, J., concurring) (controlling question concerning contingency enhancements is "how the market in a community compensates for contingency"); Rivera, 477 U. S., at 591 (REHNQUIST, J., dissenting) (reasonableness of fee must be determined "in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a `reasonable' attorney's fee under § 1988 means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys"). A reasonable attorney's fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i. e., "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation," Blum, supra, at 896, n. 11, and one that grants the successful civil rights plaintiff a "fully compensatory fee," Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), comparable to what "is traditional with attorneys compensated by a fee-paying client." S. Rep. No. 94-1011, p. 6 (1976). If an attorney's fee awarded under § 1988 is to yield the same level of compensation that would be available from the market, the "increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks," Ramos v. Lamm, 713 F.2d 546, 558 (CA10 1983), must be taken into account. All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at "market rates." In other words, the prevailing "market rate" for attorney time is not independent of the manner in which paralegal *287 time is accounted for.[8] Thus, if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at "cost." Similarly, the fee awarded would be too high if the court accepted separate billing for paralegal hours in a market where that was not the custom. We reject the argument that compensation for paralegals at rates above "cost" would yield a "windfall" for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm's partners or is otherwise improper under § 1988, merely because it exceeds the cost of the attorney's services. If the fees are consistent with market rates and practices, the "windfall" argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress' intent to provide a "fully compensatory fee" if the prevailing plaintiff's attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work. Yet that is precisely the result sought in this case by the State of Missouri, which appears to have paid its own outside counsel for the work of paralegals at the hourly rate of $35. Record 2696, 2699.[9] *288 Nothing in § 1988 requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that § 1988 requires. Where, however, the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers' fee requests in the same way is not only permitted by § 1988, but also makes economic sense. By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours "encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes." Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 846 (CA7 1984), cert. denied, 469 U.S. 1106 (1985).[10] *289 Such separate billing appears to be the practice in most communities today.[11] In the present case, Missouri concedes that "the local market typically bills separately for paralegal services," Tr. of Oral Arg. 14, and the District Court found that the requested hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates were the prevailing rates for such services in the Kansas City area. App. to Pet. for Cert. A29, A31, A34. Under these circumstances, the court's decision to award separate compensation at these rates was fully in accord with § 1988. IV The courts below correctly granted a fee enhancement to compensate for delay in payment and approved compensation of paralegals and law clerks at market rates. The judgment of the Court of Appeals is therefore Affirmed. JUSTICE MARSHALL took no part in the consideration or decision of this case. JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, and with whom THE CHIEF JUSTICE joins in part, concurring in part and dissenting in part. I agree with the Court that 42 U.S. C. § 1988 allows compensation for the work of paralegals and law clerks at market rates, and therefore join Parts I and III of its opinion. I do not join Part II, however, for in my view the Eleventh Amendment does not permit enhancement of attorney's *290 fees assessed against a State as compensation for delay in payment. The Eleventh Amendment does not, of course, provide a State with across-the-board immunity from all monetary relief. Relief that "serves directly to bring an end to a violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect" on a State's treasury. Papasan v. Allain, 478 U.S. 265, 278 (1986). Thus, in Milliken v. Bradley, 433 U.S. 267, 289-290 (1977), the Court unanimously upheld a decision ordering a State to pay over $5 million to eliminate the effects of de jure segregation in certain school systems. On the other hand, "[r]elief that in essence serves to compensate a party injured in the past," such as relief "expressly denominated as damages," or "relief [that] is tantamount to an award of damages for a past violation of federal law, even though styled as something else," is prohibited by the Eleventh Amendment. Papasan, supra, at 278. The crucial question in this case is whether that portion of respondents' attorney's fees based on current hourly rates is properly characterized as retroactive monetary relief. In Library of Congress v. Shaw, 478 U.S. 310 (1986), the Court addressed whether the attorney's fees provision of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-5(k), permits an award of attorney's fees against the United States to be enhanced in order to compensate for delay in payment. In relevant part, § 2000e-5(k) provides: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity Commission (EEOC)] or the United States, a reasonable attorney's fees as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person." The Court began its analysis in Shaw by holding that "interest is an element of damages separate from damages on the *291 substantive claim." 478 U.S., at 314 (citing C. McCormick, Law of Damages § 50, p. 205 (1935)). Given the "no-interest" rule of federal sovereign immunity, under which the United States is not liable for interest absent an express statutory waiver to the contrary, the Court was unwilling to conclude that, by equating the United States' liability to that of private persons in § 2000e-5(k), Congress had waived the United States' immunity from interest. 478 U.S., at 314-319. The fact that § 2000e-5(k) used the word "reasonable" to modify "attorney's fees" did not alter this result, for the Court explained that it had "consistently . . . refused to impute an intent to waive immunity from interest into the ambiguous use of a particular word or phrase in a statute." Id., at 320. The description of attorney's fees as costs in § 2000e-5(k) also did not mandate a contrary conclusion because "[p]rejudgment interest . . . is considered as damages, not a component of `costs,' " and the "term `costs' has never been understood to include any interest component." Id., at 321 (emphasis added) (citing 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §§ 2664, 2666, 2670 (2d ed. 1983); 2 A. Sedgwick & G. Van Nest, Sedgwick on Damages 157-158 (7th ed. 1880)). Finally, the Court rejected the argument that the enhancement was proper because the "no-interest" rule did not prohibit compensation for delay in payment: "Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money." 478 U.S., at 322. As the Court notes, ante, at 281, n. 3, the "no-interest" rule of federal sovereign immunity at issue in Shaw provided an "added gloss of strictness," 478 U.S., at 318, and may have explained the result reached by the Court in that case, i. e., that § 2000e-5(k) did not waive the United States' immunity against awards of interest. But there is not so much as a hint anywhere in Shaw that the Court's discussions and definitions of interest and compensation for delay were dictated by, or limited to, the federal "no-interest" rule. As the *292 quotations above illustrate, the Court's opinion in Shaw is filled with broad, unqualified language. The dissenters in Shaw did not disagree with the Court's sweeping characterization of interest and compensation for delay as damages. Rather, they argued only that § 2000e-5(k) had waived the immunity of the United States with respect to awards of interest. See id., at 323-327 (BRENNAN, J., dissenting). I therefore emphatically disagree with the Court's statement that "Shaw . . . does not represent a general-purpose definition of compensation for delay that governs here." Ante, at 281, n. 3. Two general propositions that are relevant here emerge from Shaw. First, interest is considered damages and not costs. Second, compensation for delay, which serves the same function as interest, is also the equivalent of damages. These two propositions make clear that enhancement for delay constitutes retroactive monetary relief barred by the Eleventh Amendment. Given my reading of Shaw, I do not think the Court's reliance on the cost rationale of § 1988 set forth in Hutto v. Finney, 437 U.S. 678 (1978), is persuasive. Because Shaw teaches that compensation for delay constitutes damages and cannot be considered costs, see 478 U.S., at 321-322, Hutto is not controlling. See Hutto, supra, at 697, n. 27 ("[W]e do not suggest that our analysis would be the same if Congress were to expand the concept of costs beyond the traditional category of litigation expenses"). Furthermore, Hutto does not mean that inclusion of attorney's fees as costs in a statute forecloses a challenge to the enhancement of fees as compensation for delay in payment. If it did, then Shaw would have been resolved differently, for § 2000e-5(k) lists attorney's fees as costs. Even if I accepted the narrow interpretation of Shaw proffered by the Court, I would disagree with the result reached by the Court in Part II of its opinion. On its own terms, the Court's analysis fails. The Court suggests that the definitions of interest and compensation for delay set forth in Shaw *293 would be triggered only by a rule of sovereign immunity barring awards of interest against the States: "Outside the context of the `no-interest rule' of federal immunity, we see no reason why compensation for delay cannot be included within § 1988 attorney's fee awards." Ante, at 281, n. 3. But the Court does not inquire about whether such a rule exists. In fact, there is a federal rule barring awards of interest against States. See Virginia v. West Virginia, 238 U.S. 202, 234 (1915) ("Nor can it be deemed in derogation of the sovereignty of the State that she should be charged with interest if her agreement properly construed so provides") (emphasis added); United States v. North Carolina, 136 U.S. 211, 221 (1890) ("general principle" is that "an obligation of the State to pay interest, whether as interest or as damages, on any debt overdue, cannot arise except by the consent and contract of the State, manifested by statute, or in a form authorized by statute") (emphasis added). The Court has recently held that the rule of immunity set forth in Virginia and North Carolina is inapplicable in situations where the State does not retain any immunity, see West Virginia v. United States, 479 U.S. 305, 310-312 (1987) (State can be held liable for interest to the United States, against whom it has no sovereign immunity), but the rule has not otherwise been limited, and there is no reason why it should not be relevant in the Eleventh Amendment context presented in this case. As Virginia and North Carolina indicate, a State can waive its immunity against awards of interest. See also Clark v. Barnard, 108 U.S. 436, 447 (1883). The Missouri courts have interpreted Mo. Rev. Stat. § 408.020 (1979 and Supp. 1989), providing for prejudgment interest on money that becomes due and payable, and § 408.040, providing for prejudgment interest on court judgments and orders, as making the State liable for interest. See Denton Construction Co. v. Missouri State Highway Comm'n, 454 S.W.2d 44, 59-60 (Mo. 1970) (§ 408.020); Steppelman v. State Highway Comm'n of Missouri, 650 S.W.2d 343, 345 (Mo. App. *294 1983) (§ 408.040). There can be no argument, however, that these Missouri statutes and cases allow interest to be awarded against the State here. A "State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts." Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, n. 9 (1984). The fact that a State has immunity from awards of interest is not the end of the matter. In a case such as this one involving school desegregation, interest or compensation for delay (in the guise of current hourly rates) can theoretically be awarded against a State despite the Eleventh Amendment's bar against retroactive monetary liability. The Court has held that Congress can set aside the States' Eleventh Amendment immunity in order to enforce the provisions of the Fourteenth Amendment. See City of Rome v. United States, 446 U.S. 156, 179 (1980); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Congress must, however, be unequivocal in expressing its intent to abrogate that immunity. See generally Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243 (1985) ("Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself"). In Hutto the Court was able to avoid deciding whether § 1988 met the "clear statement" rule only because attorney's fees (without any enhancement) are not considered retroactive in nature. See 437 U.S., at 695-697. The Court cannot do the same here, where the attorney's fees were enhanced to compensate for delay in payment. Cf. Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989) ("[U]nlike attorney's fees, which at common law were regarded as an element of costs, . . . prejudgment interest traditionally has been considered part of the compensation due [the] plaintiff"). In relevant part, § 1988 provides: "In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, *295 title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." In my view, § 1988 does not meet the "clear statement" rule set forth in Atascadero. It does not mention damages, interest, compensation for delay, or current hourly rates. As one federal court has correctly noted, "Congress has not yet made any statement suggesting that a § 1988 attorney's fee award should include prejudgment interest." Rogers v. Okin, 821 F.2d 22, 27 (CA1 1987). A comparison of the statute at issue in Shaw also indicates that § 1988, as currently written, is insufficient to allow attorney's fees assessed against a State to be enhanced to compensate for delay in payment. The language of § 1988 is undoubtedly less expansive than that of § 2000e-5(k), for § 1988 does not equate the liability of States with that of private persons. Since § 2000e-5(k) does not allow enhancement of an award of attorney's fees to compensate for delay, it is logical to conclude that § 1988, a more narrowly worded statute, likewise does not allow interest (through the use of current hourly rates) to be tacked on to an award of attorney's fees against a State. Compensation for delay in payment was one of the reasons the District Court used current hourly rates in calculating respondents' attorney's fees. See App. to Pet. for Cert. A26-A27; 838 F.2d 260, 263, 265 (CA8 1988). I would reverse the award of attorney's fees to respondents and remand so that the fees can be calculated without taking compensation for delay into account.

This is the attorney's fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, to resolve two questions relating to fees litigation under as amended, 42 U.S. C. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work? *6 I This litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 7 1/2 months during and the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See cert. denied, ; cert. granted, The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C.[1] Benson and his associates had devoted 10,875 attorney hours to the litigation, as well as 8,108 hours of paralegal and law clerk time. For the LDF the corresponding *7 figures were 10,854 hours for attorneys and 15,517 hours for paralegals and law clerks. Their fee applications deleted from these totals 3,628 attorney hours and 7,046 paralegal hours allocable to unsuccessful claims against the suburban school districts. With additions for postjudgment monitoring and for preparation of the fee application, the District Court awarded Benson a total of approximately $1.7 million and the LDF $2.3 million. App. to Pet. for Cert. A22-A43. In calculating the hourly rate for Benson's fees the court noted that the market rate in Kansas City for attorneys of Benson's qualifications was in the range of $125 to $ per hour, and found that "Mr. Benson's rate would fall at the higher end of this range based upon his expertise in the area of civil rights." at A26. It calculated his fees on the basis of an even higher hourly rate of $200, however, because of three additional factors: the preclusion of other employment, the undesirability of the case, and the delay in payment for Benson's services. at A26-A. The court also took account of the delay in payment in setting the rates for several of Benson's associates by using current market rates rather than those applicable at the time the services were rendered. at A28-A30. For the same reason, it calculated the fees for the LDF attorneys at current market rates. at A33. Both Benson and the LDF employed numerous paralegals, law clerks (generally law students working part time), and recent law graduates in this litigation. The court awarded fees for their work based on Kansas City market rates for those categories. As in the case of the attorneys, it used current rather than historic market rates in order to compensate for the delay in payment. It therefore awarded fees based on hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates. at A29-A31, A34. The Court of Appeals affirmed in all respects. * II Our grant of certiorari extends to two issues raised by the State of Missouri. Missouri first contends that a State cannot, consistent with the principle of sovereign immunity this Court has found embodied in the Eleventh Amendment, be compelled to pay an attorney's fee enhanced to compensate for delay in payment. This question requires us to examine the intersection of two of our precedents, and Library of[2] In the lower courts had awarded attorney's fees against the State of Arkansas, in part pursuant to in connection with litigation over the conditions of confinement in that State's prisons. The State contended that any such award was subject to the Eleventh Amendment's constraints on actions for payable from a State's treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between "retroactive monetary relief" and "prospective injunctive relief." See ; Ex parte Young, Attorney's fees, we held, belonged to the latter category, because they constituted reimbursement of "expenses incurred in litigation seeking only prospective relief," rather than "retroactive liability for prelitigation conduct." ; see also We explained: "Unlike ordinary `retroactive' relief such as or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief." Section we noted, fit easily into the *9 longstanding practice of awarding "costs" against States, for the statute imposed the award of attorney's fees "as part of the costs." citing Fairmont Creamery After therefore, it must be accepted as settled that an award of attorney's fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment. And if the principle of making such an award is beyond the reach of the Eleventh Amendment, the same must also be true for the question of how a "reasonable attorney's fee" is to be calculated. See Missouri contends, however, that the principle enunciated in has been undermined by subsequent decisions of this Court that require Congress to "express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State ; See also Dellmuth v. Muth, ante, p. 223; Pennsylvania v. Union Gas Co., ante, p. 1. The flaw in this argument lies in its misreading of the holding of It is true that in we noted that Congress could, in the exercise of its enforcement power under 5 of the Fourteenth Amendment, set aside the States' immunity from retroactive citing and that Congress intended to do so in enacting -694. But we also made clear that the application of to the States did not depend on congressional abrogation of the States' immunity. We did so in rejecting precisely the "clear statement" argument that Missouri now suggests has undermined Arkansas had argued that did not plainly abrogate the States' immunity; citing and the State contended that "retroactive liability" could not be imposed on the States "in the absence of an extraordinarily explicit *280 statutory mandate." We responded as follows: "[T]hese cases [Employees and Edelman] concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney's fees `as part of the costs.' Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity." The holding of therefore, was not just that Congress had spoken sufficiently clearly to overcome Eleventh Amendment immunity in enacting but rather that the Eleventh Amendment did not apply to an award of attorney's fees ancillary to a grant of prospective relief. See That holding is unaffected by our subsequent jurisprudence concerning the degree of clarity with which Congress must speak in order to override Eleventh Amendment immunity, and we reaffirm it today. Missouri's other line of argument is based on our decision in Library of involved an application of the longstanding "no-interest rule," under which interest cannot be awarded against the United States unless it has expressly waived its sovereign immunity. We held that while Congress, in making the Federal Government a potential defendant under Title VII of the Civil Rights Act of 1964, had waived the United States' immunity from suit and from costs including reasonable attorney's fees, it had not waived the Federal Government's traditional immunity from any award of We thus held impermissible a 30 percent increase in the "lodestar" fee to compensate for delay in payment. Because we refused to find in the language of Title VII a waiver of the United States' immunity from interest, Missouri argues, we should likewise conclude that is not sufficiently explicit to constitute an abrogation of the States' immunity under the Eleventh Amendment in regard to any award of *281 The answer to this contention is already clear from what we have said about Since, as we held in the Eleventh Amendment does not bar an award of attorney's fees ancillary to a grant of prospective relief, our holding in has no application, even by analogy.[3] There is no need in this case to determine whether Congress has spoken sufficiently clearly to meet a "clear statement" requirement, and it is therefore irrelevant whether the Eleventh Amendment standard should be, as Missouri contends, as stringent as the one we applied for purposes of the no-interest rule in Rather, the issue here — whether the "reasonable attorney's fee" provided for in should be calculated in such a manner as to include an enhancement, where appropriate, for delay in payment — is a straightforward *282 matter of statutory interpretation. For this question, it is of no relevance whether the party against which fees are awarded is a State. The question is what Congress intended — not whether it manifested "the clear affirmative intent. to waive the sovereign's immunity."[4] This question is not a difficult one. We have previously explained, albeit in dicta, why an enhancement for delay in payment is, where appropriate, part of a "reasonable attorney's fee." In we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment. But we took care to distinguish that risk from the factor of delay: "First is the matter of delay. When plaintiffs' entitlement to attorney's fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e. g., Sierra ; Louisville Black Police Officers Organization, Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue We do not suggest that adjustments for delay are *283 inconsistent with the typical fee-shifting statute." The same conclusion is appropriate under[5] Our cases have repeatedly stressed that attorney's fees awarded under this statute are to be based on market rates for the services rendered. See, e. g., ; ; Clearly, compensation received several years after the services were rendered — as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings.[6] We agree, therefore, *284 that an appropriate adjustment for delay in payment — whether by the application of current rather than historic hourly rates or otherwise — is within the contemplation of the statute. To summarize: We reaffirm our holding in that the Eleventh Amendment has no application to an award of attorney's fees, ancillary to a grant of prospective relief, against a State. It follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney's fee under An award against a State of a fee that includes such an enhancement for delay is not, therefore, barred by the Eleventh Amendment. III Missouri's second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively "paralegals") at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $15 — which it argued below corresponded to their salaries, benefits, and overhead — would be appropriate, rather than the market rates of $35 to $50. According to Missouri, does not authorize billing paralegals' hours at market rates, and doing so produces a "windfall" for the attorney.[7] *285 We begin with the statutory language, which provides simply for "a reasonable attorney's fee as part of the costs." 42 U.S. C. Clearly, a "reasonable attorney's fee" cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the "reasonable attorney's fee" provided for by statute should compensate the work of paralegals, as well as that of attorneys. The more difficult question is how the work of paralegals is to be valuated in calculating the overall attorney's fee. The statute specifies a "reasonable" fee for the attorney's work product. In determining how other elements of the attorney's fee are to be calculated, we have consistently looked to the marketplace as our guide to what is "reasonable." In for example, we rejected an argument that attorney's fees for nonprofit legal *286 service organizations should be based on cost. We said: "The statute and legislative history establish that `reasonable fees' under are to be calculated according to the prevailing market rates in the relevant community" See also, e. g., Delaware (controlling question concerning contingency enhancements is "how the market in a community compensates for contingency"); (reasonableness of fee must be determined "in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a `reasonable' attorney's fee under means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys"). A reasonable attorney's fee under is one calculated on the basis of rates and practices prevailing in the relevant market, i. e., "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation," and one that grants the successful civil rights plaintiff a "fully compensatory fee," comparable to what "is traditional with attorneys compensated by a fee-paying client." S. Rep. No. 94-1011, p. 6 If an attorney's fee awarded under is to yield the same level of compensation that would be available from the market, the "increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks," must be taken into account. All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at "market rates." In other words, the prevailing "market rate" for attorney time is not independent of the manner in which paralegal *287 time is accounted for.[8] Thus, if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at "cost." Similarly, the fee awarded would be too high if the court accepted separate billing for paralegal hours in a market where that was not the custom. We reject the argument that compensation for paralegals at rates above "cost" would yield a "windfall" for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm's partners or is otherwise improper under merely because it exceeds the cost of the attorney's services. If the fees are consistent with market rates and practices, the "windfall" argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress' intent to provide a "fully compensatory fee" if the prevailing plaintiff's attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work. Yet that is precisely the result sought in this case by the State of Missouri, which appears to have paid its own outside counsel for the work of paralegals at the hourly rate of $35. Record 2696, 2699.[9] *288 Nothing in requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that requires. Where, however, the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers' fee requests in the same way is not only permitted by but also makes economic sense. By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours "encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes." Cameo Convalescent Center, cert. denied,[10] *289 Such separate billing appears to be the practice in most communities today.[11] In the present case, Missouri concedes that "the local market typically bills separately for paralegal services," Tr. of Oral Arg. 14, and the District Court found that the requested hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates were the prevailing rates for such services in the Kansas City area. App. to Pet. for Cert. A29, A31, A34. Under these circumstances, the court's decision to award separate compensation at these rates was fully in accord with IV The courts below correctly granted a fee enhancement to compensate for delay in payment and approved compensation of paralegals and law clerks at market rates. The judgment of the Court of Appeals is therefore Affirmed. JUSTICE MARSHALL took no part in the consideration or decision of this case. JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, and with whom THE CHIEF JUSTICE joins in part, concurring in part and dissenting in part. I agree with the Court that 42 U.S. C. allows compensation for the work of paralegals and law clerks at market rates, and therefore join Parts I and III of its opinion. I do not join Part II, however, for in my view the Eleventh Amendment does not permit enhancement of attorney's *290 fees assessed against a State as compensation for delay in payment. The Eleventh Amendment does not, of course, provide a State with across-the-board immunity from all monetary relief. Relief that "serves directly to bring an end to a violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect" on a State's treasury. Thus, in the Court unanimously upheld a decision ordering a State to pay over $5 million to eliminate the effects of de jure segregation in certain school systems. On the other hand, "[r]elief that in essence serves to compensate a party injured in the past," such as relief "expressly denominated as" or "relief [that] is tantamount to an award of for a past violation of federal law, even though styled as something else," is prohibited by the Eleventh Amendment. at The crucial question in this case is whether that portion of respondents' attorney's fees based on current hourly rates is properly characterized as retroactive monetary relief. In Library of the Court addressed whether the attorney's fees provision of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e-5(k), permits an award of attorney's fees against the United States to be enhanced in order to compensate for delay in payment. In relevant part, 2000e-5(k) provides: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity Commission (EEOC)] or the United States, a reasonable attorney's fees as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person." The Court began its analysis in by holding that "interest is an element of separate from on the *291 substantive claim." (citing C. McCormick, Law of Damages 50, p. 205 (1935)). Given the "no-interest" rule of federal sovereign immunity, under which the United States is not liable for interest absent an express statutory waiver to the contrary, the Court was unwilling to conclude that, by equating the United States' liability to that of private persons in 2000e-5(k), Congress had waived the United States' immunity from -319. The fact that 2000e-5(k) used the word "reasonable" to modify "attorney's fees" did not alter this result, for the Court explained that it had "consistently refused to impute an intent to waive immunity from interest into the ambiguous use of a particular word or phrase in a statute." The description of attorney's fees as costs in 2000e-5(k) also did not mandate a contrary conclusion because "[p]rejudgment interest is considered as not a component of `costs,' " and the "term `costs' has never been understood to include any interest component." ; 2 A. Sedgwick & G. Van Nest, Sedgwick on Damages 157-158 (7th ed. 1880)). Finally, the Court rejected the argument that the enhancement was proper because the "no-interest" rule did not prohibit compensation for delay in payment: "Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money." As the Court notes, ante, at 281, n. 3, the "no-interest" rule of federal sovereign immunity at issue in provided an "added gloss of strictness," and may have explained the result reached by the Court in that case, i. e., that 2000e-5(k) did not waive the United States' immunity against awards of But there is not so much as a hint anywhere in that the Court's discussions and definitions of interest and compensation for delay were dictated by, or limited to, the federal "no-interest" rule. As the *292 quotations above illustrate, the Court's opinion in is filled with broad, unqualified language. The dissenters in did not disagree with the Court's sweeping characterization of interest and compensation for delay as Rather, they argued only that 2000e-5(k) had waived the immunity of the United States with respect to awards of See I therefore emphatically disagree with the Court's statement that " does not represent a general-purpose definition of compensation for delay that governs here." Ante, at 281, n. 3. Two general propositions that are relevant here emerge from First, interest is considered and not costs. Second, compensation for delay, which serves the same function as interest, is also the equivalent of These two propositions make clear that enhancement for delay constitutes retroactive monetary relief barred by the Eleventh Amendment. Given my reading of I do not think the Court's reliance on the cost rationale of set forth in is persuasive. Because teaches that compensation for delay constitutes and cannot be considered costs, see 478 U.S., -322, is not controlling. See Furthermore, does not mean that inclusion of attorney's fees as costs in a statute forecloses a challenge to the enhancement of fees as compensation for delay in payment. If it did, then would have been resolved differently, for 2000e-5(k) lists attorney's fees as costs. Even if I accepted the narrow interpretation of proffered by the Court, I would disagree with the result reached by the Court in Part II of its opinion. On its own terms, the Court's analysis fails. The Court suggests that the definitions of interest and compensation for delay set forth in *293 would be triggered only by a rule of sovereign immunity barring awards of interest against the States: "Outside the context of the `no-interest rule' of federal immunity, we see no reason why compensation for delay cannot be included within attorney's fee awards." Ante, at 281, n. 3. But the Court does not inquire about whether such a rule exists. In fact, there is a federal rule barring awards of interest against States. See ; United ("general principle" is that "an obligation of the State to pay interest, whether as interest or as on any debt overdue, cannot arise except by the consent and contract of the State, manifested by statute, or in a form authorized by statute") The Court has recently held that the rule of immunity set forth in Virginia and North Carolina is inapplicable in situations where the State does not retain any immunity, see West but the rule has not otherwise been limited, and there is no reason why it should not be relevant in the Eleventh Amendment context presented in this case. As Virginia and North Carolina indicate, a State can waive its immunity against awards of See also The Missouri courts have interpreted Mo. Rev. Stat. 408.020 providing for prejudgment interest on money that becomes due and payable, and 408.040, providing for prejudgment interest on court judgments and orders, as making the State liable for See Denton Construction ( 408.020); ( 408.040). There can be no argument, however, that these Missouri statutes and cases allow interest to be awarded against the State here. A "State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts." Pennhurst State School and The fact that a State has immunity from awards of interest is not the end of the matter. In a case such as this one involving school desegregation, interest or compensation for delay (in the guise of current hourly rates) can theoretically be awarded against a State despite the Eleventh Amendment's bar against retroactive monetary liability. The Court has held that Congress can set aside the States' Eleventh Amendment immunity in order to enforce the provisions of the Fourteenth Amendment. See City of ; Congress must, however, be unequivocal in expressing its intent to abrogate that immunity. See generally Atascadero State In the Court was able to avoid deciding whether met the "clear statement" rule only because attorney's fees (without any enhancement) are not considered retroactive in nature. See -697. The Court cannot do the same here, where the attorney's fees were enhanced to compensate for delay in payment. Cf. In relevant part, provides: "In any action or proceeding to enforce a provision of sections 1981, 1982, and of this title, *295 title IX of or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." In my view, does not meet the "clear statement" rule set forth in Atascadero. It does not mention interest, compensation for delay, or current hourly rates. As one federal court has correctly noted, "Congress has not yet made any statement suggesting that a attorney's fee award should include prejudgment " A comparison of the statute at issue in also indicates that as currently written, is insufficient to allow attorney's fees assessed against a State to be enhanced to compensate for delay in payment. The language of is undoubtedly less expansive than that of 2000e-5(k), for does not equate the liability of States with that of private persons. Since 2000e-5(k) does not allow enhancement of an award of attorney's fees to compensate for delay, it is logical to conclude that a more narrowly worded statute, likewise does not allow interest (through the use of current hourly rates) to be tacked on to an award of attorney's fees against a State. Compensation for delay in payment was one of the reasons the District Court used current hourly rates in calculating respondents' attorney's fees. See App. to Pet. for Cert. A26-A; I would reverse the award of attorney's fees to respondents and remand so that the fees can be calculated without taking compensation for delay into account.

Justice Douglas

dissenting

USCSC v. National Association of Letter Carriers

https://www.courtlistener.com/opinion/108857/uscsc-v-national-association-of-letter-carriers/

https://www.courtlistener.com/api/rest/v3/clusters/108857/

1972-177

The Hatch Act by § 9 (a) prohibits federal employees from taking "an active part in political management or in political campaigns." Some of the employees, whose union is speaking for them, want "to run in state and local elections for the school board, for city council, for mayor"; "to write letters on political subjects to newspapers"; "to be a delegate in a political convention"; "to run for an office and hold office in a political party or political club"; "to campaign for candidates for political office"; "to work at polling places in behalf of a political party." There is no definition of what "an active part . . . in political campaigns" means. The Act incorporates over 3,000 rulings of the Civil Service Commission between *596 1886 and 1940 and many hundreds of rulings since 1940. But even with that gloss on the Act, the critical phrases lack precision. In 1971 the Commission published a three-volume work entitled Political Activities Reporter which contains over 800 of its decisions since the enactment of the Hatch Act. One can learn from studying those volumes that it is not "political activity" to march in a band during a political parade or to wear political badges or to "participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise his efficiency or integrity as an employee or the neutrality, efficiency, or integrity of his agency." 5 CFR § 733.111 (a) (13). That is to say, some things, like marching in a band, are clear. Others are pregnant with ambiguity as "participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise," etc. Permission to "[t]ake an active part . . . in a nonpartisan election," 5 CFR § 733.111 (a) (10), also raises large questions of uncertainty because one may be partisan for a person, an issue, a candidate without feeling an identification with one political party or the other. The District Court felt that the prohibitions in the Act are "worded in generalities that lack precision," 346 F. Supp. 578, 582, with the result that it is hazardous for an employee "if he ventures to speak on a political matter since he will not know when his words or acts relating to political subjects will offend." Id., at 582-583. The chilling effect of these vague and generalized prohibitions is so obvious as not to need elaboration. That effect would not be material to the issue of constitutionality if only the normal contours of the police power were involved. On the run of social and economic matters the "rational basis" standard which United Public *597 Workers v. Mitchell, 330 U.S. 75, applied would suffice.[1] But what may have been unclear to some in Mitchell should by now be abundantly clear to all. We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby—unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employee's job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a "privilege," then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized "on a basis that infringes [the employee's] constitutionally protected interests—especially, his interest in freedom of speech." See Perry v. Sindermann, 408 U.S. 593, 597. If Government, as the majority stated in Mitchell, may not condition public employment on the basis that the employee will not "take any active part in missionary work," 330 U.S., at 100, it is difficult to see why it may condition employment on the basis that the employee not take "an active part . . . in political campaigns." *598 For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause. Free discussion of governmental affairs is basic in our constitutional system. Sweezy v. New Hampshire, 354 U.S. 234, 250; Mills v. Alabama, 384 U.S. 214, 218; Monitor Patriot Co. v. Roy, 401 U.S. 265, 272. Laws that trench on that area must be narrowly and precisely drawn to deal with precise ends. Overbreadth in the area of the First Amendment has a peculiar evil, the evil of creating chilling effects which deter the exercise of those freedoms. Dombrowski v. Pfister, 380 U.S. 479, 486. As we stated in NAACP v. Button, 371 U.S. 415, 433, in speaking of First Amendment freedoms and the unconstitutionality of overbroad statutes: "These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." Mitchell is of a different vintage from the present case. Since its date, a host of decisions have illustrated the need for narrowly drawn statutes that touch First Amendment rights. A teacher was held to be unconstitutionally discharged for sending a letter to a newspaper that criticized the school authorities. Pickering v. Board of Education, 391 U.S. 563, 573. "In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public." We followed the same course in Wood v. Georgia, 370 U.S. 375, when we relieved a sheriff from a contempt conviction for making a public statement in connection with a current political controversy. As in the present case, the sheriff spoke as a *599 private citizen and what he said did not interfere with his duties as sheriff. Id., at 393-394. The present Act cannot be appropriately narrowed to meet the need for narrowly drawn language not embracing First Amendment speech or writing without substantial revision. That rewriting cannot be done by the Commission because Congress refused to delegate to it authority to regulate First Amendment rights. The proposal to do so aroused a great debate in Congress[2] and Senator Hatch finally submitted a substitute, saying "[i]t does away with the question of the delegation of power."[3] The Commission, on a case-by-case approach, has listed 13 categories of prohibited activities, 5 CFR § 733.122 (b), starting with the catch-all "include but are not limited to." So the Commission ends up with open-end discretion to penalize X or not to penalize him. For example, a "permissible" activity is the employee's right to "[e]xpress his opinion as an individual privately and publicly on political subjects and candidates." 5 CFR § 733.111 (a) (2). Yet "soliciting votes" is prohibited. 5 CFR § 733.122 (b) (7). Is an employee safe from punishment if he expresses his opinion that candidate X is the best *600 and candidate Y the worst? Is that crossing the forbidden line of soliciting votes? A nursing assistant at a veterans' hospital put an ad in a newspaper reading: "To All My Many Friends of Poplar Bluff and Butler County I want to take this opportunity to ask your vote and support in the election, TUESDAY, AUGUST 7th. A very special person is seeking the Democratic nomination for Sheriff. I do not have to tell you of his qualifications, his past records stand. "This person is my dad, Lester (Less) Massingham. "THANK YOU "WALLACE (WALLY) MASSINGHAM" He was held to have violated the Act. Massingham, 1 Political Activity Reporter 792, 793 (1959). Is a letter a permissible "expression" of views or a prohibited "solicitation?" The Solicitor General says it is a "permissible" expression; but the Commission ruled otherwise. For an employee who does not have the Solicitor General as counsel great consequences flow from an innocent decision. He may lose his job. Therefore the most prudent thing is to do nothing. Thus is selfimposed censorship imposed on many nervous people who live on narrow economic margins. I would strike this provision of the law down as unconstitutional so that a new start may be made on this old problem that confuses and restricts nearly five million federal, state, and local public employees today that live under the present Act.

The Hatch Act by 9 prohibits federal employees from taking "an active part in political management or in political campaigns." Some of the employees, whose union is speaking for them, want "to run in state and local elections for the school board, for city council, for mayor"; "to write letters on political subjects to newspapers"; "to be a delegate in a political convention"; "to run for an office and hold office in a political party or political club"; "to campaign for candidates for political office"; "to work at polling places in behalf of a political party." There is no definition of what "an active part in political campaigns" means. The Act incorporates over 3,000 rulings of the Civil Service Commission between *596 1886 and 1940 and many hundreds of rulings since 1940. But even with that gloss on the Act, the critical phrases lack precision. In 1971 the Commission published a three-volume work entitled Political Activities Reporter which contains over 800 of its decisions since the enactment of the Hatch Act. One can learn from studying those volumes that it is not "political activity" to march in a band during a political parade or to wear political badges or to "participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise his efficiency or integrity as an employee or the neutrality, efficiency, or integrity of his agency." 5 CFR 733.111 (13). That is to say, some things, like marching in a band, are clear. Others are pregnant with ambiguity as "participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise," etc. Permission to "[t]ake an active part in a nonpartisan election," 5 CFR 733.111 (10), also raises large questions of uncertainty because one may be partisan for a person, an issue, a candidate without feeling an identification with one political party or the other. The District Court felt that the prohibitions in the Act are "worded in generalities that lack precision," with the result that it is hazardous for an employee "if he ventures to speak on a political matter since he will not know when his words or acts relating to political subjects will offend." at -583. The chilling effect of these vague and generalized prohibitions is so obvious as not to need elaboration. That effect would not be material to the issue of constitutionality if only the normal contours of the police power were involved. On the run of social and economic matters the "rational basis" standard which United Public * applied would suffice.[1] But what may have been unclear to some in Mitchell should by now be abundantly clear to all. We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby—unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employee's job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a "privilege," then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized "on a basis that infringes [the employee's] constitutionally protected interests—especially, his interest in freedom of speech." See If Government, as the majority stated in Mitchell, may not condition public employment on the basis that the employee will not "take any active part in missionary work," it is difficult to see why it may condition employment on the basis that the employee not take "an active part in political campaigns." *598 For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause. Free discussion of governmental affairs is basic in our constitutional system. ; ; Monitor Patriot Laws that trench on that area must be narrowly and precisely drawn to deal with precise ends. Overbreadth in the area of the First Amendment has a peculiar evil, the evil of creating chilling effects which deter the exercise of those freedoms. As we stated in in speaking of First Amendment freedoms and the unconstitutionality of overbroad statutes: "These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." Mitchell is of a different vintage from the present case. Since its date, a host of decisions have illustrated the need for narrowly drawn statutes that touch First Amendment rights. A teacher was held to be unconstitutionally discharged for sending a letter to a newspaper that criticized the school authorities. "In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public." We followed the same course in when we relieved a sheriff from a contempt conviction for making a public statement in connection with a current political controversy. As in the present case, the sheriff spoke as a *599 private citizen and what he said did not interfere with his duties as sheriff. The present Act cannot be appropriately narrowed to meet the need for narrowly drawn language not embracing First Amendment speech or writing without substantial revision. That rewriting cannot be done by the Commission because Congress refused to delegate to it authority to regulate First Amendment rights. The proposal to do so aroused a great debate in Congress[2] and Senator Hatch finally submitted a substitute, saying "[i]t does away with the question of the delegation of power."[3] The Commission, on a case-by-case approach, has listed 13 categories of prohibited activities, 5 CFR 733.122 starting with the catch-all "include but are not limited to." So the Commission ends up with open-end discretion to penalize X or not to penalize him. For example, a "permissible" activity is the employee's right to "[e]xpress his opinion as an individual privately and publicly on political subjects and candidates." 5 CFR 733.111 (2). Yet "soliciting votes" is prohibited. 5 CFR 733.122 (7). Is an employee safe from punishment if he expresses his opinion that candidate X is the best *600 and candidate Y the worst? Is that crossing the forbidden line of soliciting votes? A nursing assistant at a veterans' hospital put an ad in a newspaper reading: "To All My Many Friends of Poplar Bluff and Butler County I want to take this opportunity to ask your vote and support in the election, TUESDAY, AUGUST 7th. A very special person is seeking the Democratic nomination for Sheriff. I do not have to tell you of his qualifications, his past records stand. "This person is my dad, Lester (Less) Massingham. "THANK YOU "WALLACE (WALLY) MASSINGHAM" He was held to have violated the Act. Massingham, 1 Political Activity Reporter 792, 793 (1959). Is a letter a permissible "expression" of views or a prohibited "solicitation?" The Solicitor General says it is a "permissible" expression; but the Commission ruled otherwise. For an employee who does not have the Solicitor General as counsel great consequences flow from an innocent decision. He may lose his job. Therefore the most prudent thing is to do nothing. Thus is selfimposed censorship imposed on many nervous people who live on narrow economic margins. I would strike this provision of the law down as unconstitutional so that a new start may be made on this old problem that confuses and restricts nearly five million federal, state, and local public employees today that live under the present Act.

Justice Brennan

majority

Complete Auto Transit, Inc. v. Reis

https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/

https://www.courtlistener.com/api/rest/v3/clusters/110472/

1980-083

In Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962), the Court held that § 301 (a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S. C. § 185 (a), does not authorize a damages action against individual union officers and members when their union is liable for violating a nostrike clause in a collective-bargaining agreement. We expressly reserved the question whether an employer might maintain a suit for damages against "individual defendants acting not in behalf of the union but in their personal and nonunion capacity" where their "unauthorized, individual action" violated the no-strike provision of the collective-bargaining agreement. 370 U.S., at 249, n. 7. We granted certiorari to decide this important question of federal labor law. 449 U.S. 898 (1980). I Petitioners are three companies engaged in the transportation by truck of motor vehicles. All three are parties to a collective-bargaining agreement with the Teamsters Union that covers operations at their respective facilities in Flint, *403 Mich. Respondents are employees of petitioners and members of Teamsters Local Union No. 332. The collective-bargaining agreement contains a no-strike clause[1] and subjects all disputes to a binding grievance and arbitration procedure. On June 8, 1976, respondents commenced a wildcat strike, because they believed that "the union was not properly representing them in . . . negotiations for amendments to the collective bargaining agreement." 614 F.2d 1110, 1111 (CA6 1980). Soon thereafter, petitioners brought this § 301 (a) action in the United States District Court for the Eastern District of Michigan, seeking injunctive relief and "damages against the [employees], in their individual capacity, for all losses arising out of the unlawful work stoppage and for attorneys fees." App. 21. Petitioners alleged that the strike was neither authorized nor approved by the union and, therefore, sought no damages from the union. See 614 F.2d, at 1115; App. 18, 20-21. After a hearing, the District Court found that "the issue which had caused the work stoppage was not arbitrable" because it was "an internal dispute between factions in the Local," App. to Pet. for Cert. 15a-16a, and accordingly denied preliminary injunctive relief, citing Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 (1970).[2]*404 Following additional hearings and settlement of the "internal dispute," the District Court concluded that "the work stoppage continued only because of a dispute between the Local and [petitioners] over amnesty for the strikers [and that] this issue was arbitrable." App. to Pet. for Cert. 16a. The court, therefore, issued a preliminary injunction, enjoining continuation of the strike. Respondents obeyed the order and returned to work on June 21, 1976. Nine months later, respondents moved to dissolve the preliminary injunction and to dismiss the complaint for damages. Relying on this Court's intervening decision in Buffalo Forge Co. v. Steelworkers, 428 U.S. 397 (1976),[3] the District Court dissolved the injunction on the ground that the work stoppage was not precipitated by an arbitrable issue. App. to Pet. for Cert. 18a. The court also dismissed petitioners' claim for damages, holding that "an employer may not sue his employees for monetary relief for breach of the collective bargaining agreement . . . whether or not the union may also be liable." Id., at 16a. The United States Court of Appeals for the Sixth Circuit reversed the District Court's dissolution of the injunction, holding that an injunction may be granted even where the issue which precipitated the strike was nonarbitrable provided an arbitrable issue, other than the simple legality of the strike itself, caused the continuation of the strike with *405 the purpose of "compel[ling] the employer to concede on the arbitrable issue." 614 F.2d, at 1114. Petitioners do not seek review of this part of the Court of Appeals' ruling.[4] The Court of Appeals affirmed the District Court's dismissal of petitioners' claim for damages from the individual union members. Relying principally on the legislative history of § 301, the Court of Appeals concluded that Congress had not intended through § 301 to "create a cause of action for damages against individual union members for breach of a no-strike agreement." 614 F.2d, at 1116. We agree. II Since Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957), it has been settled that § 301 (a)[5] does more than confer jurisdiction on federal courts to decide lawsuits alleging violations of collective-bargaining agreements. Section 301 (a) also "authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements." Textile Workers v. Lincoln Mills, 353 U. S., at *406 451. Lincoln Mills defined the mode of analysis for fashioning this body of federal law as follows: "The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem." Id., at 457. Of course, "Lincoln Mills did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule, irrespective of congressional pronouncements." Howard Johnson Co. v. Hotel & Restaurant Employees, 417 U.S. 249, 255 (1974). Rather, it is clear that in fashioning federal law under § 301 (a) substantial deference should be paid to revealed congressional intention. See Atkinson v. Sinclair Refining Co., 370 U. S., at 248-249. In Atkinson, the Court relied on the intent of Congress in passing § 301 (b) to hold that individual union members may not be sued for damages where the union has breached the no-strike provision of its collective-bargaining agreement. Section 301 (b) states in pertinent part that "[a]ny money judgment against a labor organization . . . shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." Thus, in Atkinson, we noted that "in discharging the duty Congress imposed on us to formulate the federal law to govern § 301 (a) suits, we are strongly guided by and do not give a niggardly reading to § 301 (b)." Ibid. Accordingly, we consulted and relied on the legislative history of § 301 (b) which made it "clear that th[e] third clause [of § 301 (b)] was a deeply felt congressional reaction against the Danbury Hatters case . . . and an expression *407 of legislative determination that the aftermath . . . of that decision was not to be permitted to recur." Id., at 248.[6] Similarly, in deciding the question presented in this case, we "discharg[e] the duty Congress imposed on us to formulate the federal law to govern § 301 (a) suits." Id., at 248-249, by looking to the "penumbra" of § 301 (b), 353 U.S., at 457, as informed by its legislative history. See Howard Johnson Co. v. Hotel & Restaurant Employees, supra, at 255. Section 301 (b) by its terms prohibits a money judgment entered against a union from being enforced against individual union members. See Atkinson v. Sinclair Refining Co., supra. It is a mistake to suppose that Congress thereby suggested by negative implication that employees should be held liable where their union is not liable for the strike. See Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers, 452 F.2d 49, 52 (CA7 1971). Although lengthy and complex, the legislative history of § 301 clearly reveals Congress' intent to shield individual employees from liability for damages arising from their breach of the no-strike clause of a collective-bargaining agreement, whether or not the union participated in or authorized the illegality. Indeed. Congress intended this result even though it might leave the employer unable *408 to recover for his losses. See Atkinson v. Sinclair Refining Co., supra, at 248. The legislative history of § 301 begins with a review of congressional efforts in the year prior to adoption of the Labor Management Relations Act. Section 10 of the Case bill, H. R. 4908, 79th Cong., 2d Sess. (1946), passed by both Houses of Congress, but vetoed by the President in 1946, was "the direct antecedent of § 301." Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 509 (1962). Since § 10 "contained provisions substantially the same . . . as the provisions of § 301," ibid., its legislative history is highly relevant in ascertaining congressional intent with respect to § 301, see id., at 511-512. The purpose of § 10 was "to establish a mutual responsibility when the collective-bargaining process has resulted in a contract." 92 Cong. Rec. 838 (1946) (remarks of Rep. Case). As introduced in the House, § 10 provided for collective-bargaining agreements to be enforceable "against each of the parties thereto."[7] The Senate adopted a bill which *409 encompassed the purposes of § 10 of the House version and which, in addition, explicitly permitted an employer to discharge an employee who participated in a strike which was not authorized by the union.[8] Senator Taft, principal proponent of the provision, explained: "If the union violates its collective bargaining-agreement, it is responsible, but no individual member is responsible, and he can in no way be deprived of his rights. But if the union tries to keep its contract and, in violation of its undertaking, some of its members proceed to strike, then the employer may fire those members and they do not have the protection of the Wagner Act." 92 Cong. Rec. 5705-5706 (1946). Thus the Senator stopped short of proposing that individual *410 employees be held liable in damages for engaging in unauthorized strikes. The House's subsequent consideration of the Senate's version reflected its clear understanding of the Senate's limitation on employers' remedies. Representative Case explained the Senate amendment on the floor of the House: "Individual members of a union are not made liable for any money judgment, I might point out, but only the union as an entity. If employees strike in violation of their agreement, the only individual penalty that can be employed is the forfeiture of their right to employment under that contract which is cured when the employer reemploys them." Id., at 5930-5931 (emphasis added).[9] The House then passed the Senate version. In doing so, the House, like the Senate, clearly intended to protect employees from the sanction of a suit for damages for a strike in breach of the collective-bargaining agreement, whether or not the union participated in or authorized the strike. It is true that the President vetoed this bill and that his veto was sustained. Nevertheless, the substantial similarity between the pertinent language of the Case bill as passed by Congress and of § 301 as it reads today makes the legislative history of the Case bill vitally significant to a full understanding of the policy behind § 301 (b). Six months after the veto, Congress began work on the legislation which became § 301.[10] The bill ultimately passed *411 by the House created a federal cause of action for breach of a collective-bargaining agreement.[11] The Committee Report explained that "actions and proceedings involving violations of contracts between employers and labor organizations may be brought by either party." H. R. Rep. No. 245, 80th Cong., 1st Sess., 45-46 (1947). Section 302 (b) also contained express language precluding enforcement against individuals *412 of judgments entered against unions.[12] In addition, the bill included an amendment to § 7 of the National Labor Relations Act providing that "violations of collective bargaining-agreements" would not be protected under the Act, H. R. 3020, 80th Cong., 1st Sess. (1947), § 7 (a), thereby allowing employers to discharge wildcat strikers.[13] The House bill also included a provision, however, which allowed an employer to recover damages from individual employees. Section 12 created a damages action against any person engaging in an unlawful concerted activity. The bill defined "unlawful concerted activities" to include, inter alia, jurisdictional strikes, sympathy strikes, and certain picketing activities. Significantly, however, the Senate rejected the House's imposition in § 12 of damages liability against individuals for unlawful concerted activity, and a Conference Committee adopted the Senate version.[14] The Senate counterpart to *413 § 12 of the House bill was § 303. Senator Taft offered a floor amendment to § 303 which would have established a damages action against individuals who engage in certain types of unlawful concerted activity such as secondary boycotts and jurisdictional strikes. 93 Cong. Rec. 4900 (1947). In a critical exchange during the debate on the proposed amendment, Senator Taft altered the language to limit damages actions to claims against unions, in order to conform with § 301 (b) and bar imposition of individual damages liability against employees: "Mr. MORSE: [T]he proposal of the Senator from Ohio would open wide the doors of the Federal courts to damage suits against any person who engaged in a strike or attempted to persuade other employees to engage in a strike for one of the prohibited objectives. "The proposal would very definitely take us back at least 40 years and we would again have the spectacle of mass suits against employees, similar to the infamous Danbury Hatters case. Senators will recall that in that case some 150 members of the union were sued by their employer and the Supreme Court of the United States sustained a judgment against them in the neighborhood of a quarter million dollars. . . . "It also should be pointed out that the substitute proposal is inconsistent with the present provision in the bill allowing a union to be sued for breach of contract. Section 301 of the bill permits suits against labor organizations *414 only, whereas the substitute proposal allows damage suits against `any person.' Also, section 301 limits recovery to the assets of the union. The substitute allows the attachment of employees' bank accounts and all their property. ..... "Mr. TAFT: On request by . . . Senator [Ives] from New York and others who raised the point, I am amending the proposal, by striking out the word `person,' in the second line, and inserting in lieu thereof `labor organization,' so the action will be open only against labor organizations promoting this type of strike." Id., at 4839-4841.[15] The Senate passed this version of the bill, foreclosing individual damages liability in both § 301 and § 303 lawsuits. At conference, the Conference Committee squarely rejected § 12 of the House bill in favor of § 303 of the Senate bill, thereby refusing to create a damages action against individual employees for the conduct prohibited in that section. In addition, the Committee deleted the provision in the House bill which had removed protection under § 7 of the National Labor Relations Act for concerted activity in breach of a collective-bargaining agreement for the stated reason that the provision was unnecessary in light of recent decisions of the National Labor Relations Board. Those provisions had held that "strikes in violation of collective bargaining contracts were not concerted activities protected by the act and [the NLRB had] refused to reinstate employees discharged for engaging in such activities." H. R. Conf. Rep. No. 510, 80th *415 Cong., 1st Sess., 39 (1947). The Committee, therefore, opted for a discharge remedy for violations of § 303 by individuals, rather than for the damages remedy that had been proposed by the House. At the same time, it preferred discharge as the employer's remedy under § 301 where employees violate the no-strike provision of their collective-bargaining agreement.[16] Thus, while § 301 (b) explicitly addresses only union-authorized violations of a collective-bargaining agreement, the "penumbra" of § 301 (b), Textile Workers v. Lincoln Mills, 353 U. S., at 457, as informed by its legislative history, establishes that Congress meant to exclude individual strikers from damages liability, whether or not they were authorized by their union to strike.[17] The legislative debates and the process of legislative amendment demonstrate that Congress deliberately chose to allow a damages remedy for breach of the *416 no-strike provision of a collective-bargaining agreement only against unions, not individuals, and, as to unions, only when they participated in or authorized the strike. See Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 216 (1979). Congress itself balanced the competing advantages and disadvantages inherent in the possible remedies to combat wildcat strikes, and "we are strongly guided by" its choice.[18]Atkinson *417 v. Sinclair Refining Co., 370 U. S., at 249. See Howard Johnson Co. v. Hotel & Restaurant Employees, 417 U. S., at 255. Accordingly, we hold that § 301 (a) does not sanction damages actions against individual employees for violating the no-strike provision of the collective-bargaining agreement, whether or not their union participated in or authorized the strike. Affirmed. JUSTICE POWELL, concurring in part and concurring in the judgment.

In the Court held that 301 (a) of the Labor Management Relations Act, 1947, 29 U.S. C. 185 (a), does not authorize a damages action against individual union officers and members when their union is liable for violating a nostrike clause in a collective-bargaining agreement. We expressly reserved the question whether an employer might maintain a suit for damages against "individual defendants acting not in behalf of the union but in their personal and nonunion capacity" where their "unauthorized, individual action" violated the no-strike provision of the collective-bargaining agreement. n. 7. We granted certiorari to decide this important question of federal labor law. I Petitioners are three companies engaged in the transportation by truck of motor vehicles. All three are parties to a collective-bargaining agreement with the Teamsters Union that covers operations at their respective facilities in Flint, *403 Mich. Respondents are employees of petitioners and members of Teamsters Local Union No. 332. The collective-bargaining agreement contains a no-strike clause[1] and subjects all disputes to a binding grievance and arbitration procedure. On June 8, 1976, respondents commenced a wildcat strike, because they believed that "the union was not properly representing them in negotiations for amendments to the collective bargaining agreement." Soon thereafter, petitioners brought this 301 (a) action in the United States District Court for the Eastern District of Michigan, seeking injunctive relief and "damages against the [employees], in their individual capacity, for all losses arising out of the unlawful work stoppage and for attorneys fees." App. 21. Petitioners alleged that the strike was neither authorized nor approved by the union and, therefore, sought no damages from the union. See ; App. 18, 20-21. After a hearing, the District Court found that "the issue which had caused the work stoppage was not arbitrable" because it was "an internal dispute between factions in the Local," App. to Pet. for Cert. 15a-16a, and accordingly denied preliminary injunctive relief, citing Boys Markets,[2]*404 Following additional hearings and settlement of the "internal dispute," the District Court concluded that "the work stoppage continued only because of a dispute between the Local and [petitioners] over amnesty for the strikers [and that] this issue was arbitrable." App. to Pet. for Cert. 16a. The court, therefore, issued a preliminary injunction, enjoining continuation of the strike. Respondents obeyed the order and returned to work on June 21, 1976. Nine months later, respondents moved to dissolve the preliminary injunction and to dismiss the complaint for damages. Relying on this Court's intervening decision in Buffalo Forge[3] the District Court dissolved the injunction on the ground that the work stoppage was not precipitated by an arbitrable issue. App. to Pet. for Cert. 18a. The court also dismissed petitioners' claim for damages, holding that "an employer may not sue his employees for monetary relief for breach of the collective bargaining agreement whether or not the union may also be liable." at 16a. The United States Court of Appeals for the Sixth Circuit reversed the District Court's dissolution of the injunction, holding that an injunction may be granted even where the issue which precipitated the strike was nonarbitrable provided an arbitrable issue, other than the simple legality of the strike itself, caused the continuation of the strike with *405 the purpose of "compel[ling] the employer to concede on the arbitrable issue." Petitioners do not seek review of this part of the Court of Appeals' ruling.[4] The Court of Appeals affirmed the District Court's dismissal of petitioners' claim for damages from the individual union members. Relying principally on the legislative history of 301, the Court of Appeals concluded that Congress had not intended through 301 to "create a cause of action for damages against individual union members for breach of a no-strike agreement." We agree. II Since Textile it has been settled that 301 (a)[5] does more than confer jurisdiction on federal courts to decide lawsuits alleging violations of collective-bargaining agreements. Section 301 (a) also "authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements." Textile 353 U. S., at *406 451. Lincoln defined the mode of analysis for fashioning this body of federal law as follows: "The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem." Of course, "Lincoln did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule, irrespective of congressional pronouncements." Howard Johnson Rather, it is clear that in fashioning federal law under 301 (a) substantial deference should be paid to revealed congressional intention. See -249. In Atkinson, the Court relied on the intent of Congress in passing 301 (b) to hold that individual union members may not be sued for damages where the union has breached the no-strike provision of its collective-bargaining agreement. Section 301 (b) states in pertinent part that "[a]ny money judgment against a labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." Thus, in Atkinson, we noted that "in discharging the duty Congress imposed on us to formulate the federal law to govern 301 (a) suits, we are strongly guided by and do not give a niggardly reading to 301 (b)." Accordingly, we consulted and relied on the legislative history of 301 (b) which made it "clear that th[e] third clause [of 301 (b)] was a deeply felt congressional reaction against the Danbury Hatters case and an expression *407 of legislative determination that the aftermath of that decision was not to be permitted to recur."[6] Similarly, in deciding the question presented in this case, we "discharg[e] the duty Congress imposed on us to formulate the federal law to govern 301 (a) suits." -249, by looking to the "penumbra" of 301 (b), 353 U.S., as informed by its legislative history. See Howard Johnson at Section 301 (b) by its terms prohibits a money judgment entered against a union from being enforced against individual union members. See It is a mistake to suppose that Congress thereby suggested by negative implication that employees should be held liable where their union is not liable for the strike. See Sinclair Oil Although lengthy and complex, the legislative history of 301 clearly reveals Congress' intent to shield individual employees from liability for damages arising from their breach of the no-strike clause of a collective-bargaining agreement, whether or not the union participated in or authorized the illegality. Indeed. Congress intended this result even though it might leave the employer unable *408 to recover for his losses. See The legislative history of 301 begins with a review of congressional efforts in the year prior to adoption of the Labor Management Relations Act. Section 10 of the Case bill, H. R. 4908, 79th Cong., 2d Sess. (1946), passed by both Houses of Congress, but vetoed by the President in 1946, was "the direct antecedent of 301." Charles Dowd Box v. Courtney, Since 10 "contained provisions substantially the same as the provisions of 301," ib its legislative history is highly relevant in ascertaining congressional intent with respect to 301, see The purpose of 10 was "to establish a mutual responsibility when the collective-bargaining process has resulted in a contract." 92 Cong. Rec. 838 (1946) (remarks of Rep. Case). As introduced in the House, 10 provided for collective-bargaining agreements to be enforceable "against each of the parties thereto."[7] The Senate adopted a bill which *409 encompassed the purposes of 10 of the House version and which, in addition, explicitly permitted an employer to discharge an employee who participated in a strike which was not authorized by the union.[8] Senator Taft, principal proponent of the provision, explained: "If the union violates its collective bargaining-agreement, it is responsible, but no individual member is responsible, and he can in no way be deprived of his rights. But if the union tries to keep its contract and, in violation of its undertaking, some of its members proceed to strike, then the employer may fire those members and they do not have the protection of the Wagner Act." 92 Cong. Rec. 5705-5706 (1946). Thus the Senator stopped short of proposing that individual *410 employees be held liable in damages for engaging in unauthorized strikes. The House's subsequent consideration of the Senate's version reflected its clear understanding of the Senate's limitation on employers' remedies. Representative Case explained the Senate amendment on the floor of the House: "Individual members of a union are not made liable for any money judgment, I might point out, but only the union as an entity. If employees strike in violation of their agreement, the only individual penalty that can be employed is the forfeiture of their right to employment under that contract which is cured when the employer reemploys them."[9] The House then passed the Senate version. In doing so, the House, like the Senate, clearly intended to protect employees from the sanction of a suit for damages for a strike in breach of the collective-bargaining agreement, whether or not the union participated in or authorized the strike. It is true that the President vetoed this bill and that his veto was sustained. Nevertheless, the substantial similarity between the pertinent language of the Case bill as passed by Congress and of 301 as it reads today makes the legislative history of the Case bill vitally significant to a full understanding of the policy behind 301 (b). Six months after the veto, Congress began work on the legislation which became 301.[10] The bill ultimately passed *411 by the House created a federal cause of action for breach of a collective-bargaining agreement.[11] The Committee Report explained that "actions and proceedings involving violations of contracts between employers and labor organizations may be brought by either party." H. R. Rep. No. 245, 80th Cong., 1st Sess., 45-46 (1947). Section 302 (b) also contained express language precluding enforcement against individuals *412 of judgments entered against unions.[12] In addition, the bill included an amendment to 7 of the National Labor Relations Act providing that "violations of collective bargaining-agreements" would not be protected under the Act, H. R. 3020, 80th Cong., 1st Sess. (1947), 7 (a), thereby allowing employers to discharge wildcat strikers.[13] The House bill also included a provision, however, which allowed an employer to recover damages from individual employees. Section 12 created a damages action against any person engaging in an unlawful concerted activity. The bill defined "unlawful concerted activities" to include, inter alia, jurisdictional strikes, sympathy strikes, and certain picketing activities. Significantly, however, the Senate rejected the House's imposition in 12 of damages liability against individuals for unlawful concerted activity, and a Conference Committee adopted the Senate version.[14] The Senate counterpart to *413 12 of the House bill was 303. Senator Taft offered a floor amendment to 303 which would have established a damages action against individuals who engage in certain types of unlawful concerted activity such as secondary boycotts and jurisdictional strikes. 93 Cong. Rec. 4900 (1947). In a critical exchange during the debate on the proposed amendment, Senator Taft altered the language to limit damages actions to claims against unions, in order to conform with 301 (b) and bar imposition of individual damages liability against employees: "Mr. MORSE: [T]he proposal of the Senator from Ohio would open wide the doors of the Federal courts to damage suits against any person who engaged in a strike or attempted to persuade other employees to engage in a strike for one of the prohibited objectives. "The proposal would very definitely take us back at least 40 years and we would again have the spectacle of mass suits against employees, similar to the infamous Danbury Hatters case. Senators will recall that in that case some 150 members of the union were sued by their employer and the Supreme Court of the United States sustained a judgment against them in the neighborhood of a quarter million dollars. "It also should be pointed out that the substitute proposal is inconsistent with the present provision in the bill allowing a union to be sued for breach of contract. Section 301 of the bill permits suits against labor organizations *414 only, whereas the substitute proposal allows damage suits against `any person.' Also, section 301 limits recovery to the assets of the union. The substitute allows the attachment of employees' bank accounts and all their property. "Mr. TAFT: On request by Senator [Ives] from New York and others who raised the point, I am amending the proposal, by striking out the word `person,' in the second line, and inserting in lieu thereof `labor organization,' so the action will be open only against labor organizations promoting this type of strike."[15] The Senate passed this version of the bill, foreclosing individual damages liability in both 301 and 303 lawsuits. At conference, the Conference Committee squarely rejected 12 of the House bill in favor of 303 of the Senate bill, thereby refusing to create a damages action against individual employees for the conduct prohibited in that section. In addition, the Committee deleted the provision in the House bill which had removed protection under 7 of the National Labor Relations Act for concerted activity in breach of a collective-bargaining agreement for the stated reason that the provision was unnecessary in light of recent decisions of the National Labor Relations Board. Those provisions had held that "strikes in violation of collective bargaining contracts were not concerted activities protected by the act and [the NLRB had] refused to reinstate employees discharged for engaging in such activities." H. R. Conf. Rep. No. 510, 80th *415 Cong., 1st Sess., 39 (1947). The Committee, therefore, opted for a discharge remedy for violations of 303 by individuals, rather than for the damages remedy that had been proposed by the House. At the same time, it preferred discharge as the employer's remedy under 301 where employees violate the no-strike provision of their collective-bargaining agreement.[16] Thus, while 301 (b) explicitly addresses only union-authorized violations of a collective-bargaining agreement, the "penumbra" of 301 (b), Textile 353 U. S., as informed by its legislative history, establishes that Congress meant to exclude individual strikers from damages liability, whether or not they were authorized by their union to strike.[17] The legislative debates and the process of legislative amendment demonstrate that Congress deliberately chose to allow a damages remedy for breach of the *416 no-strike provision of a collective-bargaining agreement only against unions, not individuals, and, as to unions, only when they participated in or authorized the strike. See Carbon Fuel v. Mine Workers, Congress itself balanced the competing advantages and disadvantages inherent in the possible remedies to combat wildcat strikes, and "we are strongly guided by" its choice.[18]Atkinson *417 v. Sinclair Refining See Howard Johnson 417 U. S., at Accordingly, we hold that 301 (a) does not sanction damages actions against individual employees for violating the no-strike provision of the collective-bargaining agreement, whether or not their union participated in or authorized the strike. Affirmed. JUSTICE POWELL, concurring in part and concurring in the judgment.

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/855518/kirtsaeng-v-john-wiley-sons-inc/

https://www.courtlistener.com/api/rest/v3/clusters/855518/

“In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress.” United States v. American Trucking Assns., Inc., 310 U.S. 534, 542 (1940). Instead of adhering to the Legislature’s design, the Court today adopts an interpretation of the Copyright Act at odds with Congress’ aim to protect copyright owners against the unauthorized importation of low-priced, foreign­ made copies of their copyrighted works. The Court’s bold departure from Congress’ design is all the more stunning, for it places the United States at the vanguard of the movement for “international exhaustion” of copyrights—a movement the United States has steadfastly resisted on the world stage. To justify a holding that shrinks to insignificance copy­ right protection against the unauthorized importation of foreign-made copies, the Court identifies several “practical problems.” Ante, at 24. The Court’s parade of horribles, however, is largely imaginary. Congress’ objective in enacting 17 U.S. C. §602(a)(1)’s importation prohibition can be honored without generating the absurd conse­ quences hypothesized in the Court’s opinion. I dissent 2 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting from the Court’s embrace of “international exhaustion,” and would affirm the sound judgment of the Court of Appeals. I Because economic conditions and demand for particular goods vary across the globe, copyright owners have a financial incentive to charge different prices for copies of their works in different geographic regions. Their ability to engage in such price discrimination, however, is under- mined if arbitrageurs are permitted to import copies from low-price regions and sell them in high-price regions. The question in this case is whether the unauthorized importation of foreign-made copies constitutes copyright infringement under U. S. law. To answer this question, one must examine three provi­ sions of Title 17 of the U. S. Code: §§106(3), 109(a), and 602(a)(1). Section 106 sets forth the “exclusive rights” of a copyright owner, including the right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” §106(3). This distribution right is limited by §109(a), which provides: “Notwithstanding the provisions of section 106(3), the owner of a particular copy or phono- record lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Section 109(a) codifies the “first sale doc­ trine,” a doctrine articulated in Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 349–351 (1908), which held that a copyright owner could not control the price at which re­ tailers sold lawfully purchased copies of its work. The first sale doctrine recognizes that a copyright owner should not be permitted to exercise perpetual control over the distribution of copies of a copyrighted work. At some point—ordinarily the time of the first commercial sale— Cite as: 568 U. S. ____ (2013) 3 GINSBURG, J., dissenting the copyright owner’s exclusive right under §106(3) to control the distribution of a particular copy is exhausted, and from that point forward, the copy can be resold or otherwise redistributed without the copyright owner’s authorization. Section 602(a)(1) (2006 ed., Supp. V)1—last, but most critical, of the three copyright provisions bearing on this case—is an importation ban. It reads: “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringe- ment of the exclusive right to distribute copies or phonorecords under section 106, actionable under sec­ tion 501.” In Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135, 143–154 (1998), the Court held that a copyright owner’s right to control importation under §602(a)(1) is a component of the distribution right set forth in §106(3) and is therefore subject to §109(a)’s codification of the first sale doctrine. Quality King thus held that the importation of copies made in the United States but sold abroad did not rank as copyright infringement under §602(a)(1). Id., at 143–154. See also id., at 154 (GINSBURG, J., concurring) (Quality King “involve[d] a ‘round trip’ journey, travel of the copies in question from the United States to places abroad, then back again”).2 —————— 1 In 2008, Congress renumbered what was previously §602(a) as §602(a)(1). See Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PROIPA), §105(b)(2), 122 Stat. 4259. Like the Court, I refer to the provision by its current numbering. 2 Although JUSTICE KAGAN’s concurrence suggests that Quality King erred in “holding that §109(a) limits §602(a)(1),” ante, at 2, that recent, unanimous holding must be taken as a given. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (“[S]tare decisis in respect to statutory interpretation has ‘special force,’ for ‘Congress 4 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Important to the Court’s holding, the copies at issue in Quality King had been “ ‘lawfully made under [Title 17]’ ”—a prerequisite for application of §109(a). Id., at 143, n. 9 (quoting §109(a)). Section 602(a)(1), the Court noted, would apply to “copies that were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” Id., at 147. Drawing on an example discussed during a 1964 public meeting on pro­ posed revisions to the U. S. copyright laws,3 the Court stated: “If the author of [a] work gave the exclusive United States distribution rights—enforceable under the Act—to the publisher of the United States edition and the exclusive British distribution rights to the pub­ lisher of the British edition, . . . presumably only those [copies] made by the publisher of the United States edition would be ‘lawfully made under this title’ within the meaning of §109(a). The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a de­ fense to an action under §602(a) (or, for that matter, —————— remains free to alter what we have done.’ ” (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172–173 (1989))). The Court’s objective in this case should be to avoid unduly “constrict[ing] the scope of §602(a)(1)’s ban on unauthorized importation,” ante, at 1 (opinion of KAGAN, J.), while at the same time remaining faithful to Quality King’s holding and to the text and history of other Copyright Act provisions. This aim is not difficult to achieve. See Parts II–V, infra. JUSTICE KAGAN and I appear to agree to this extent: Congress meant the ban on unauthorized importation to have real force. See ante, at 3 (acknowl­ edging that “Wiley may have a point about what §602(a)(1) was de­ signed to do”). 3 See Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135, 148, n. 20 (1998) (quoting Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R. Judiciary Comm. Print 1964) (hereinafter Copyright Law Revision Part 4) (statement of Harriet Pilpel)). Cite as: 568 U. S. ____ (2013) 5 GINSBURG, J., dissenting to an action under §106(3), if there was a distribution of the copies).” Id., at 148. As the District Court and the Court of Appeals concluded, see 654 F.3d 210, 221–222 (CA2 2011); App. to Pet. for Cert. 70a–73a, application of the Quality King analysis to the facts of this case would preclude any invocation of §109(a). Petitioner Supap Kirtsaeng imported and then sold at a profit over 600 copies of copyrighted textbooks printed outside the United States by the Asian subsidiary of respondent John Wiley & Sons, Inc. (Wiley). App. 29– 34. See also ante, at 3–5 (opinion of the Court). In the words the Court used in Quality King, these copies “were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” 523 U. S., at 147. Section 109(a) therefore does not ap- ply, and Kirtsaeng’s unauthorized importation constitutes copyright infringement under §602(a)(1). The Court does not deny that under the language I have quoted from Quality King, Wiley would prevail. Ante, at 27. Nevertheless, the Court dismisses this language, to which all Members of the Quality King Court subscribed, as ill-considered dictum. Ante, at 27–28. I agree that the discussion was dictum in the sense that it was not essen­ tial to the Court’s judgment. See Quality King, 523 U. S., at 154 (GINSBURG, J., concurring) (“[W]e do not today resolve cases in which the allegedly infringing imports were manufactured abroad.”). But I disagree with the Court’s conclusion that this dictum was ill considered. Instead, for the reasons explained below, I would hold, consistently with Quality King’s dictum, that §602(a)(1) authorizes a copyright owner to bar the importation of a copy manufactured abroad for sale abroad. II The text of the Copyright Act demonstrates that Con­ gress intended to provide copyright owners with a potent 6 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting remedy against the importation of foreign-made copies of their copyrighted works. As the Court recognizes, ante, at 3, this case turns on the meaning of the phrase “lawfully made under this title” in §109(a). In my view, that phrase is most sensibly read as referring to instances in which a copy’s creation is governed by, and conducted in compli­ ance with, Title 17 of the U. S. Code. This reading is consistent with the Court’s interpretation of similar lan­ guage in other statutes. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 52–53 (2008) (“under” in 11 U.S. C. §1146(a), a Bankruptcy Code provi­ sion exempting certain asset transfers from stamp taxes, means “pursuant to”); Ardestani v. INS, 502 U.S. 129, 135 (1991) (the phrase “under section 554” in the Equal Access to Justice Act means “subject to” or “governed by” 5 U.S. C. §554 (internal quotation marks omitted)). It also accords with dictionary definitions of the word “under.” See, e.g., American Heritage Dictionary 1887 (5th ed. 2011) (“under” means, among other things, “[s]ubject to the authority, rule, or control of ”). Section 109(a), properly read, affords Kirtsaeng no defense against Wiley’s claim of copyright infringement. The Copyright Act, it has been observed time and again, does not apply extraterritorially. See United Dictionary Co. v. G. & C. Merriam Co., 208 U.S. 260, 264 (1908) (copyright statute requiring that U. S. copyright notices be placed in all copies of a work did not apply to copies pub­ lished abroad because U. S. copyright laws have no “force” beyond the United States’ borders); 4 M. Nimmer & D. Nimmer, Copyright §17.02, p. 17–18 (2012) (hereinafter Nimmer) (“[C]opyright laws do not have any extraterrito­ rial operation.”); 4 W. Patry, Copyright §13:22, p. 13–66 (2012) (hereinafter Patry) (“Copyright laws are rigor- ously territorial.”). The printing of Wiley’s foreign­ manufactured textbooks therefore was not governed by Title 17. The textbooks thus were not “lawfully made Cite as: 568 U. S. ____ (2013) 7 GINSBURG, J., dissenting under [Title 17],” the crucial precondition for application of §109(a). And if §109(a) does not apply, there is no dis­ pute that Kirtsaeng’s conduct constituted copyright in­ fringement under §602(a)(1). The Court’s point of departure is similar to mine. Ac­ cording to the Court, the phrase “ ‘lawfully made under this title’ means made ‘in accordance with’ or ‘in compli­ ance with’ the Copyright Act.” Ante, at 8. But the Court overlooks that, according to the very dictionaries it cites, ante, at 9, the word “under” commonly signals a relation­ ship of subjection, where one thing is governed or regu- lated by another. See Black’s Law Dictionary 1525 (6th ed. 1990) (“under” “frequently” means “inferior” or “subordi­ nate” (internal quotation marks omitted)); 18 Oxford English Dictionary 950 (2d ed. 1989) (“under” means, among other things, “[i]n accordance with (some regulative power or principle)” (emphasis added)). See also Webster’s Third New International Dictionary 2487 (1961) (“under” means, among other things, “in . . . a condition of sub- jection, regulation, or subordination” and “suffering re­ striction, restraint, or control by”). Only by disregarding this established meaning of “under” can the Court arrive at the conclusion that Wiley’s foreign-manufactured text­ books were “lawfully made under” U. S. copyright law, even though that law did not govern their creation. It is anomalous, however, to speak of particular conduct as “lawful” under an inapplicable law. For example, one might say that driving on the right side of the road in England is “lawful” under U. S. law, but that would be so only because U. S. law has nothing to say about the sub­ ject. The governing law is English law, and English law demands that driving be done on the left side of the road.4 —————— 4 The Court asserts that my position gives the word “lawfully” in §109(a) “little, if any, linguistic work to do.” Ante, at 9. That is not so. My reading gives meaning to each word in the phrase “lawfully made 8 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting The logical implication of the Court’s definition of the word “under” is that any copy manufactured abroad—even a piratical one made without the copyright owner’s author­ ization and in violation of the law of the country where it was created—would fall within the scope of §109(a). Any such copy would have been made “in accordance with” or “in compliance with” the U. S. Copyright Act, in the sense that manufacturing the copy did not violate the Act (be­ cause the Act does not apply extraterritorially). The Court rightly refuses to accept such an absurd conclusion. Instead, it interprets §109(a) as applying only to copies whose making actually complied with Title 17, or would have complied with Title 17 had Title 17 been ap­ plicable (i.e., had the copies been made in the United States). See ante, at 8 (“§109(a)’s ‘first sale’ doctrine would apply to copyrighted works as long as their manufacture met the requirements of American copyright law.”). Con­ gress, however, used express language when it called for such a counterfactual inquiry in 17 U.S. C. §§602(a)(2) and (b). See §602(a)(2) (“Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either consti­ tuted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106.” (emphasis added)); §602(b) (“In a case where the making —————— under this title.” The word “made” signifies that the conduct at issue is the creation or manufacture of a copy. See Webster’s Third New International Dictionary 1356 (1961) (defining “made” as “artificially produced by a manufacturing process”). The word “lawfully” indicates that for §109(a) to apply, the copy’s creation must have complied with some body of law. Finally, the prepositional phrase “under this title” clarifies what that body of law is—namely, the copyright prescriptions contained in Title 17 of the U. S. Code. Cite as: 568 U. S. ____ (2013) 9 GINSBURG, J., dissenting of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.” (emphasis added)). Had Congress intended courts to engage in a similarly hypo­ thetical inquiry under §109(a), Congress would pre- sumably have included similar language in that section. See Russello v. United States, 464 U.S. 16, 23 (1983) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972) (per curiam); brackets in original)).5 —————— 5 Attempting to show that my reading of §109(a) is susceptible to the same criticism, the Court points to the now-repealed “manufacturing clause,” which required “copies of a work consisting preponderantly of nondramatic literary material . . . in the English language” to be “manufactured in the United States or Canada.” Copyright Act of 1976, §601(a), 90 Stat. 2588. Because Congress expressly referred to manu­ facturing in this provision, the Court contends, the phrase “lawfully made under this title” in §109(a) cannot mean “manufactured in the United States.” Ante, at 19. This argument is a non sequitur. I do not contend that the phrases “lawfully made under this title” and “manu­ factured in the United States” are interchangeable. To repeat, I read the phrase “lawfully made under this title” as referring to instances in which a copy’s creation is governed by, and conducted in compliance with, Title 17 of the U. S. Code. See supra, at 6. Not all copies “manu­ factured in the United States” will satisfy this standard. For example, piratical copies manufactured in the United States without the copy­ right owner’s authorization are not “lawfully made under [Title 17].” Nor would the phrase “lawfully manufactured in the United States” be an exact substitute for “lawfully made under this title.” The making of a copy may be lawful under Title 17 yet still violate some other provi­ sion of law. Consider, for example, a copy made with the copyright owner’s authorization by workers who are paid less than minimum wage. The copy would be “lawfully made under [Title 17]” in the sense that its creation would not violate any provision of that title, but the copy’s manufacturing would nonetheless be unlawful due to the viola­ 10 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Not only does the Court adopt an unnatural construc­ tion of the §109(a) phrase “lawfully made under this title.” Concomitantly, the Court reduces §602(a)(1) to insignifi­ cance. As the Court appears to acknowledge, see ante, at 26, the only independent effect §602(a)(1) has under to­ day’s decision is to prohibit unauthorized importations carried out by persons who merely have possession of, but do not own, the imported copies. See 17 U.S. C. §109(a) (§109(a) applies to any “owner of a particular copy or phonorecord lawfully made under this title” (emphasis added)).6 If this is enough to avoid rendering §602(a)(1) entirely “superfluous,” ante, at 26, it hardly suffices to give the owner’s importation right the scope Congress intended it to have. Congress used broad language in §602(a)(1); it did so to achieve a broad objective. Had Congress intended simply to provide a copyright remedy against larcenous lessees, licensees, consignees, and bailees of films and other copyright-protected goods, see ante, at 13–14, 26, it likely would have used language tailored to that narrow purpose. See 2 Nimmer §8.12[B][6][c], at 8–184.31, n. 432 (“It may be wondered whether . . . potential causes of action [against licensees and the like] are more than theo­ retical.”). See also ante, at 2 (KAGAN, J., concurring) (the Court’s decision limits §602(a)(1) “to a fairly esoteric set of —————— tion of the minimum-wage laws. 6 When §602(a)(1) was originally enacted in 1976, it played an addi­ tional role—providing a private cause of action against importers of piratical goods. See Quality King, 523 U. S., at 146. In 2008, however, Congress amended §602 to provide for such a cause of action in §602(a)(2), which prohibits the unauthorized “[i]mportation into the United States . . . of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have consti­ tuted an infringement of copyright if [Title 17] had been applicable.” See PROIPA, §105(b)(3), 122 Stat. 4259–4260. Thus, under the Court’s interpretation, the only conduct reached by §602(a)(1) but not §602(a)(2) is a nonowner’s unauthorized importation of a nonpiratical copy. Cite as: 568 U. S. ____ (2013) 11 GINSBURG, J., dissenting applications”).7 The Court’s decision also overwhelms 17 U.S. C. §602(a)(3)’s exceptions to §602(a)(1)’s importation prohibi­ tion. 2 P. Goldstein, Copyright §7.6.1.2(a), p. 7:141 (3d ed. 2012) (hereinafter Goldstein).8 Those exceptions permit the importation of copies without the copyright owner’s authorization for certain governmental, personal, schol- arly, educational, and religious purposes. 17 U.S. C. §602(a)(3). Copies imported under these exceptions “will often be lawfully made gray market goods purchased through normal market channels abroad.” 2 Goldstein —————— 7 Notably, the Court ignores the history of §602(a)(1), which reveals that the primary purpose of the prescription was not to provide a remedy against rogue licensees, consignees, and bailees, against whom copyright owners could frequently assert breach-of-contract claims even in the absence of §602(a)(1). Instead, the primary purpose of §602(a)(1) was to reach third-party importers, enterprising actors like Kirtsaeng, against whom copyright owners could not assert contract claims due to lack of privity. See Part III, infra. 8 Section 602(a)(3) provides: “This subsection [i.e., §602(a)] does not apply to— “(A) importation or exportation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; “(B) importation or exportation, for the private use of the importer or exporter and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States or departing from the United States with respect to copies or phonorecords forming part of such person’s personal baggage; or “(C) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of sys­ tematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2).” 12 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting §7.6.1.2(a), at 7:141.9 But if, as the Court holds, such copies can in any event be imported by virtue of §109(a), §602(a)(3)’s work has already been done. For example, had Congress conceived of §109(a)’s sweep as the Court does, what earthly reason would there be to provide, as Congress did in §602(a)(3)(C), that a library may import “no more than five copies” of a non-audiovisual work for its “lending or archival purposes”? The far more plausible reading of §§109(a) and 602(a), then, is that Congress intended §109(a) to apply to copies made in the United States, not to copies manufactured and sold abroad. That reading of the first sale and impor­ tation provisions leaves §602(a)(3)’s exceptions with real, meaningful work to do. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sen­ tence, or word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)). In the range of circum- stances covered by the exceptions, §602(a)(3) frees indi­ viduals and entities who purchase foreign-made copies abroad from the requirement they would otherwise face under §602(a)(1) of obtaining the copyright owner’s per­ mission to import the copies into the United States.10 —————— 9 The term “gray market good” refers to a good that is “imported out­ side the distribution channels that have been contractually negotiated by the intellectual property owner.” Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429 (S. Anderman ed. 2007). Such goods are also commonly called “parallel imports.” Ibid. 10 The Court asserts that its reading of §109(a) is bolstered by §104, which extends the copyright “protection[s]” of Title 17 to a wide variety of foreign works. See ante, at 10–11. The “protection under this title” afforded by §104, however, is merely protection against infringing conduct within the United States, the only place where Title 17 applies. See 4 W. Patry, Copyright §13:44.10, pp. 13–128 to 13–129 (2012) (hereinafter Patry). Thus, my reading of the phrase “under this title” in Cite as: 568 U. S. ____ (2013) 13 GINSBURG, J., dissenting III The history of §602(a)(1) reinforces the conclusion I draw from the text of the relevant provisions: §109(a) does not apply to copies manufactured abroad. Section 602(a)(1) was enacted as part of the Copyright Act of 1976, 90 Stat. 2589–2590. That Act was the product of a lengthy revision effort overseen by the U. S. Copyright Office. See Mills Music, Inc. v. Snyder, 469 U.S. 153, 159–160 (1985). In its initial 1961 report on recommended revisions, the Copyright Office noted that publishers had “suggested that the [then-existing] import ban on piratical copies should be extended to bar the importation of . . . foreign edition[s]” in violation of “agreements to divide interna­ tional markets for copyrighted works.” Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 126 (H. R. Judiciary Comm. Print 1961) (herein­ after Copyright Law Revision). See Copyright Act of 1947, §106, 61 Stat. 663 (“The importation into the United States . . . of any piratical copies of any work copyrighted —————— §109(a) is consistent with Congress’ use of that phrase in §104. Fur­ thermore, §104 describes which works are entitled to copyright protec­ tion under U. S. law. But no one disputes that Wiley’s copyrights in the works at issue in this case are valid. The only question is whether Kirtsaeng’s importation of copies of those works infringed Wiley’s copyrights. It is basic to copyright law that “[o]wnership of a copyright . . . is distinct from ownership of any material object in which the work is embodied.” 17 U.S. C. §202. See also §101 (“ ‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”). Given the distinction copyright law draws between works and copies, §104 is inapposite to the question here presented. 4 Patry §13:44.10, at 13–129 (“There is no connection, linguistically or substantively, between Section[s] 104 and 109: Section 104 deals with national eligibility for the intangible work of authorship; Section 109(a) deals with the tangible, physical embodiment of the work, the ‘copy.’ ”). 14 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting in the United States . . . is prohibited.”). The Copyright Office originally recommended against such an extension of the importation ban, reasoning that enforcement of territorial restrictions was best left to contract law. Copy­ right Law Revision 126. Publishing-industry representatives argued strenuously against the position initially taken by the Copyright Of­ fice. At a 1962 panel discussion on the Copyright Office’s report, for example, Horace Manges of the American Book Publishers Council stated: “When a U. S. book publisher enters into a contract with a British publisher to acquire exclusive U. S. rights for a particular book, he often finds that the English edition . . . of that particular book finds its way into this country. Now it’s all right to say, ‘Com­ mence a lawsuit for breach of contract.’ But this is expensive, burdensome, and, for the most part, inef­ fective.” Copyright Law Revision Part 2: Discussion and Comments on Report of the Register of Copy­ rights on the General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., 212 (H. R. Judiciary Comm. Print 1963). Sidney Diamond, representing London Records, elabo­ rated on Manges’ statement. “There are many situations,” he explained, “in which it is not necessarily a question of the inadequacy of a contract remedy—in the sense that it may be difficult or not quick enough to solve the particular problem.” Id., at 213. “Very frequently,” Diamond stated, publishers “run into a situation where . . . copies of [a] work . . . produced in a foreign country . . . may be shipped [to the United States] without violating any contract of the U. S. copyright proprietor.” Ibid. To illustrate, Diamond noted, if a “British publisher [sells a copy] to an individual who in turn ship[s] it over” to the United States, the indi­ vidual’s conduct would not “violate [any] contract between Cite as: 568 U. S. ____ (2013) 15 GINSBURG, J., dissenting the British and the American publisher.” Ibid. In such a case, “no possibility of any contract remedy” would exist. Ibid. The facts of Kirtsaeng’s case fit Diamond’s example, save that the copies at issue here were printed and ini- tially sold in Asia rather than Great Britain. After considering comments on its 1961 report, the Copyright Office “prepared a preliminary draft of provi­ sions for a new copyright statute.” Copyright Law Revi­ sion Part 3: Preliminary Draft for Revised U. S. Copyright Law and Discussions and Comments on the Draft, 88th Cong., 2d Sess., V (H. R. Judiciary Comm. Print 1964). Section 44 of the draft statute addressed the concerns raised by publishing-industry representatives. In particu­ lar, §44(a) provided: “Importation into the United States of copies or rec­ ords of a work for the purpose of distribution to the public shall, if such articles are imported without the authority of the owner of the exclusive right to dis­ tribute copies or records under this title, constitute an infringement of copyright actionable under section 35 [i.e., the section providing for a private cause of action for copyright infringement].” Id., at 32–33. In a 1964 panel discussion regarding the draft statute, Abe Goldman, the Copyright Office’s General Counsel, left no doubt about the meaning of §44(a). It represented, he explained, a “shif[t]” from the Copyright Office’s 1961 report, which had recommended against using copyright law to facilitate publishers’ efforts to segment interna­ tional markets. Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 203 (H. R. Judiciary Comm. Print 1964). Section 44(a), Gold­ man stated, would allow copyright owners to bring in­ fringement actions against importers of “foreign copies that were made under proper authority.” Ibid. See also 16 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting id., at 205–206 (Goldman agreed with a speaker’s com­ ment that §44(a) “enlarge[d]” U. S. copyright law by ex­ tending import prohibitions “to works legally produced in Europe” and other foreign countries).11 The next step in the copyright revision process was the introduction in Congress of a draft bill on July 20, 1964. See Copyright Law Revision Part 5: 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess., III (H. R. Judiciary Comm. Print 1965). After another round of public comments, a revised bill was introduced on Feb­ ruary 4, 1965. See Copyright Law Revision Part 6: Sup­ plementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revi­ sion Bill, 89th Cong., 1st Sess., V (H. R. Judiciary Comm. Print 1965) (hereinafter Copyright Law Revision Part 6). In language closely resembling the statutory text later enacted by Congress, §602(a) of the 1965 bill provided: “Importation into the United States, without the au­ thority of the owner of copyright under this title, of copies or phonorecords of a work for the purpose of distribution to the public is an infringement of the ex­ clusive right to distribute copies or phonorecords un­ der section 106, actionable under section 501.” Id., at 292.12 —————— 11 As the Court observes, ante, at 29, Irwin Karp of the Authors League of America stated at the 1964 panel discussion that §44(a) ran counter to “the very basic concept of copyright law that, once you’ve sold a copy legally, you can’t restrict its resale.” Copyright Law Revision Part 4, at 212. When asked if he was “presenting . . . an argument against” §44(a), however, Karp responded that he was “neutral on th[e] provision.” Id., at 211. There is thus little reason to believe that any changes to the wording of §44(a) before its codification in §602(a) were made in response to Karp’s discussion of “the problem of restricting [the] transfer of . . . lawfully obtained [foreign] copies.” Ibid. 12 There is but one difference between this language from the 1965 bill and the corresponding language in the current version of §602(a)(1): Cite as: 568 U. S. ____ (2013) 17 GINSBURG, J., dissenting The Court implies that the 1965 bill’s “explici[t] re­ fer[ence] to §106” showed a marked departure from §44(a) of the Copyright Office’s prior draft. Ante, at 29. The Copyright Office, however, did not see it that way. In its summary of the 1965 bill’s provisions, the Copyright Office observed that §602(a) of the 1965 bill, like §44(a) of the Copyright Office’s prior draft, see supra, at 15–16, permit­ ted copyright owners to bring infringement actions against unauthorized importers in cases “where the copyright owner had authorized the making of [the imported] copies in a foreign country for distribution only in that country.” Copyright Law Revision Part 6, at 149–150. See also id., at XXVI (Under §602(a) of the 1965 bill, “[a]n unauthorized importer could be enjoined and sued for damages both where the copies or phonorecords he was importing were ‘piratical’ (that is, where their making would have constituted an infringement if the U. S. copyright law could have been applied), and where their making was ‘lawful.’ ”). The current text of §602(a)(1) was finally enacted into law in 1976. See Copyright Act of 1976, §602(a), 90 Stat. 2589–2590. The House and Senate Committee Reports on the 1976 Act demonstrate that Congress understood, as did the Copyright Office, just what that text meant. Both Reports state: “Section 602 [deals] with two separate situations: im­ portation of ‘piratical’ articles (that is, copies or phonorecords made without any authorization of the —————— In the current version, the phrase “for the purpose of distribution to the public” is omitted and the phrase “that have been acquired outside the United States” appears in its stead. There are no material differences between the quoted language from the 1965 bill and the corresponding language contained in the 1964 bill. See Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., 292–293 (H. R. Judiciary Comm. Print 1965). 18 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting copyright owner), and unauthorized importation of copies or phonorecords that were lawfully made. The general approach of section 602 is to make unauthor- ized importation an act of infringement in both cases, but to permit the Bureau of Customs to prohibit im­ portation only of ‘piratical’ articles.” S. Rep. No. 94– 473, p. 151 (1975) (emphasis added). See also H. R. Rep. No. 94–1476, p. 169 (1976) (same). In sum, the legislative history of the Copyright Act of 1976 is hardly “inconclusive.” Ante, at 28. To the con- trary, it confirms what the plain text of the Act conveys: Congress intended §602(a)(1) to provide copyright owners with a remedy against the unauthorized importation of foreign-made copies of their works, even if those copies were made and sold abroad with the copyright owner’s authorization.13 IV Unlike the Court’s holding, my position is consistent with the stance the United States has taken in international­ trade negotiations. This case bears on the highly con­ tentious trade issue of interterritorial exhaustion. The issue arises because intellectual property law is territorial in nature, see supra, at 6, which means that creators of intellectual property “may hold a set of parallel” intellec­ tual property rights under the laws of different nations. Chiappetta, The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340–341 (2000) (hereinafter Chiappetta). There is no international con­ —————— 13 The Court purports to find support for its position in the House and Senate Committee Reports on the 1976 Copyright Act. Ante, at 30–31. It fails to come up with anything in the Act’s legislative history, how­ ever, showing that Congress understood the words “lawfully made under this title” in §109(a) to encompass foreign-made copies. Cite as: 568 U. S. ____ (2013) 19 GINSBURG, J., dissenting sensus on whether the sale in one country of a good in- corporating protected intellectual property exhausts the intellectual property owner’s right to control the distribu­ tion of that good elsewhere. Indeed, the members of the World Trade Organization, “agreeing to disagree,”14 pro­ vided in Article 6 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Apr. 15, 1994, 33 I. L. M. 1197, 1200, that “nothing in this Agree­ ment shall be used to address the issue of . . . exhaustion.” See Chiappetta 346 (observing that exhaustion of intellec­ tual property rights was “hotly debated” during the TRIPS negotiations and that Article 6 “reflects [the negotiators’] ultimate inability to agree” on a single international standard). Similar language appears in other treaties to which the United States is a party. See World Intellectual Property Organization (WIPO) Copyright Treaty, Art. 6(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 7 (“Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the ex­ haustion of the right [to control distribution of copies of a copyrighted work] applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.”); WIPO Perfor­ mances and Phonograms Treaty, Art. 8(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 28 (containing language nearly identical to Article 6(2) of the WIPO Copyright Treaty). In the absence of agreement at the international level, each country has been left to choose for itself the exhaus­ tion framework it will follow. One option is a national­ exhaustion regime, under which a copyright owner’s right —————— 14 Chiappetta,The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340 (2000) (hereinafter Chiappetta) (internal quotation marks omitted). 20 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting to control distribution of a particular copy is exhausted only within the country in which the copy is sold. See Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429, 430 (S. Anderman ed. 2007) (hereinafter Forsyth & Rothnie). Another option is a rule of international exhaustion, under which the authorized distribution of a particular copy anywhere in the world exhausts the copy­ right owner’s distribution right everywhere with respect to that copy. See ibid. The European Union has adopted the intermediate approach of regional exhaustion, under which the sale of a copy anywhere within the European Economic Area exhausts the copyright owner’s distribu­ tion right throughout that region. See id., at 430, 445. Section 602(a)(1), in my view, ties the United States to a national-exhaustion framework. The Court’s decision, in con- trast, places the United States solidly in the international­ exhaustion camp. Strong arguments have been made both in favor of, and in opposition to, international exhaustion. See Chiappetta 360 (“[r]easonable people making valid points can, and do, reach conflicting conclusions” regarding the desirability of international exhaustion). International exhaustion subjects copyright-protected goods to competition from lower priced imports and, to that extent, benefits con- sumers. Correspondingly, copyright owners profit from a national-exhaustion regime, which also enlarges the mon­ etary incentive to create new copyrightable works. See Forsyth & Rothnie 432–437 (surveying arguments for and against international exhaustion). Weighing the competing policy concerns, our Govern­ ment reached the conclusion that widespread adoption of the international-exhaustion framework would be incon­ sistent with the long-term economic interests of the United States. See Brief for United States as Amicus Curiae in Quality King, O. T. 1997, No. 96–1470, pp. 22–26 (herein­ Cite as: 568 U. S. ____ (2013) 21 GINSBURG, J., dissenting after Quality King Brief).15 Accordingly, the United States has steadfastly “taken the position in international trade negotiations that domestic copyright owners should . . . have the right to prevent the unauthorized importation of copies of their work sold abroad.” Id., at 22. The United States has “advanced this position in multilateral trade negotiations,” including the negotiations on the TRIPS Agreement. Id., at 24. See also D. Gervais, The TRIPS Agreement: Drafting History and Analysis §2.63, p. 199 (3d ed. 2008). It has also taken a dim view of our trading partners’ adoption of legislation incorporating elements of international exhaustion. See Clapperton & Corones, Locking in Customers, Locking Out Competitors: Anti- Circumvention Laws in Australia and Their Potential Effect on Competition in High Technology Markets, 30 Melbourne U. L. Rev. 657, 664 (2006) (United States expressed concern regarding international-exhaustion leg- islation in Australia); Montén, Comment, The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? 9 Marq. Intellectual —————— 15 The Court states that my “reliance on the Solicitor General’s posi­ tion in Quality King is undermined by his agreement in that case with [the] reading of §109(a)” that the Court today adopts. Ante, at 33. The United States’ principal concern in both Quality King and this case, however, has been to protect copyright owners’ “right to prevent paral­ lel imports.” Brief for United States as Amicus Curiae in Quality King, O. T. 1997, No. 96–1470, p. 6 (hereinafter Quality King Brief). See also Brief for United States as Amicus Curiae 14 (arguing that Kirtsaeng’s interpretation of §109(a), which the Court adopts, would “subver[t] Section 602(a)(1)’s ban on unauthorized importation”). In Quality King, the Solicitor General urged this Court to hold that §109(a)’s codification of the first sale doctrine does not limit the right to control importation set forth in §602(a). Quality King Brief 7–30. After Quality King rejected that contention, the United States reconsidered its position, and it now endorses the interpretation of the §109(a) phrase “lawfully made under this title” I would adopt. Brief for United States as Amicus Curiae 6–7, 13–14. 22 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Property L. Rev. 387, 417–418 (2005) (same with respect to New Zealand and Taiwan). Even if the text and history of the Copyright Act were am- biguous on the answer to the question this case presents— which they are not, see Parts II–III, supra16—I would resist a holding out of accord with the firm position the United States has taken on exhaustion in internation­ al negotiations. Quality King, I acknowledge, discounted the Government’s concerns about potential inconsistency with United States obligations under certain bilateral trade agreements. See 523 U. S., at 153–154. See also Quality King Brief 22–24 (listing the agreements). That decision, however, dealt only with copyright-protected products made in the United States. See 523 U. S., at 154 (GINSBURG, J., concurring). Quality King left open the question whether owners of U. S. copyrights could retain control over the importation of copies manufactured and sold abroad—a point the Court obscures, see ante, at 33 (arguing that Quality King “significantly eroded” the national-exhaustion principle that, in my view, §602(a)(1) embraces). The Court today answers that question with a resounding “no,” and in doing so, it risks undermining the United States’ credibility on the world stage. While the Government has urged our trading partners to refrain from adopting international-exhaustion regimes that could benefit consumers within their borders but would impact adversely on intellectual-property producers in the United States, the Court embraces an international-exhaustion rule that could benefit U. S. consumers but would likely —————— 16 Congress hardly lacks capacity to provide for international exhaus­ tion when that is its intent. Indeed, Congress has expressly provided for international exhaustion in the narrow context of semiconductor chips embodying protected “mask works.” See 17 U.S. C. §§905(2), 906(b). See also 2 M. Nimmer & D. Nimmer, Copyright §8A.06[E], p. 8A–37 (2012) (hereinafter Nimmer) (“[T]he first sale doctrine under [§906(b)] expressly immunizes unauthorized importation.”). Cite as: 568 U. S. ____ (2013) 23 GINSBURG, J., dissenting disadvantage foreign holders of U. S. copyrights. This dissonance scarcely enhances the United States’ “role as a trusted partner in multilateral endeavors.” Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U.S. 528, 539 (1995). V I turn now to the Court’s justifications for a decision difficult to reconcile with the Copyright Act’s text and history. A The Court asserts that its holding “is consistent with antitrust laws that ordinarily forbid market divisions.” Ante, at 32. See also ante, at 18 (again referring to anti­ trust principles). Section 602(a)(1), however, read as I do and as the Government does, simply facilitates copyright owners’ efforts to impose “vertical restraints” on distribu­ tors of copies of their works. See Forsyth & Rothnie 435 (“Parallel importation restrictions enable manufacturers and distributors to erect ‘vertical restraints’ in the market through exclusive distribution agreements.”). See gener- ally Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (discussing vertical restraints). We have held that vertical restraints are not per se illegal under §1 of the Sherman Act, 15 U.S. C. §1, because such “restraints can have procompetitive effects.” 551 U. S., at 881–882.17 —————— 17 Despite the Court’s suggestion to the contrary, this case in no way implicates the per se antitrust prohibition against horizontal “ ‘[a]greements between competitors to allocate territories to minimize competition.’ ” Ante, at 32 (quoting Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 (1990) (per curiam)). Wiley is not requesting authority to enter into collusive agreements with other textbook publishers that would, for example, make Wiley the exclusive supplier of textbooks on particular subjects within particular geographic regions. Instead, Wiley asserts no more than the prerogative to impose vertical restraints 24 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting B The Court sees many “horribles” following from a hold­ ing that the §109(a) phrase “lawfully made under this title” does not encompass foreign-made copies. Ante, at 22 (internal quotation marks omitted). If §109(a) excluded foreign-made copies, the Court fears, then copyright own­ ers could exercise perpetual control over the downstream distribution or public display of such copies. A ruling in Wiley’s favor, the Court asserts, would shutter libraries, put used-book dealers out of business, cripple art muse­ ums, and prevent the resale of a wide range of consumer goods, from cars to calculators. Ante, at 19–22. See also ante, at 2–3 (KAGAN, J., concurring) (expressing concern about “imposing downstream liability on those who pur­ chase and resell in the United States copies that happen to have been manufactured abroad”). Copyright law and precedent, however, erect barriers to the anticipated horribles.18 1 Recognizing that foreign-made copies fall outside the ambit of §109(a) would not mean they are forever free of the first sale doctrine. As earlier observed, see supra, at 2, the Court stated that doctrine initially in its 1908 Bobbs- —————— on the distribution of its own textbooks. See Hovenkamp, Post-Sale Restraints and Competitive Harm: The First Sale Doctrine in Perspec­ tive, 66 N. Y. U. Ann. Survey Am. L. 487, 488 (2011) (“vertical re­ straints” include “limits [on] the way a seller’s own product can be distributed”). 18 As the Court observes, ante, at 32–33, the United States stated at oral argument that the types of “horribles” predicted in the Court’s opinion would, if they came to pass, be “worse than the frustration of market segmentation” that will result from the Court’s interpretation of §109(a). Tr. of Oral Arg. 51. The United States, however, recognized that this purported dilemma is a false one. As the United States explained, the Court’s horribles can be avoided while still giving mean­ ingful effect to §602(a)(1)’s ban on unauthorized importation. Ibid. Cite as: 568 U. S. ____ (2013) 25 GINSBURG, J., dissenting Merrill decision. At that time, no statutory provision expressly codified the first sale doctrine. Instead, copy­ right law merely provided that copyright owners had “the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending” their works. Copyright Act of 1891, §1, 26 Stat. 1107. In Bobbs-Merrill, the Court addressed the scope of the statutory right to “ven[d].” In granting that right, the Court held, Congress did not intend to permit copyright owners “to fasten . . . a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it and had given a satisfactory price for it.” 210 U. S., at 349–350. “[O]ne who has sold a copy­ righted article . . . without restriction,” the Court ex­ plained, “has parted with all right to control the sale of it.” Id., at 350. Thus, “[t]he purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.” Ibid. Under the logic of Bobbs-Merrill, the sale of a foreign­ manufactured copy in the United States carried out with the copyright owner’s authorization would exhaust the copyright owner’s right to “vend” that copy. The copy could thenceforth be resold, lent out, or otherwise redis­ tributed without further authorization from the copyright owner. Although §106(3) uses the word “distribute” rather than “vend,” there is no reason to think Congress intended the word “distribute” to bear a meaning different from the construction the Court gave to the word “vend” in Bobbs- Merrill. See ibid. (emphasizing that the question before the Court was “purely [one] of statutory construction”).19 —————— 19 It appears that the Copyright Act of 1976 omitted the word “vend” and introduced the word “distribute” to avoid the “redundan[cy]” present in pre-1976 law. Copyright Law Revision: Report of the Regis­ ter of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 21 (H. R. Judiciary Comm. Print 1961) (noting 26 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Thus, in accord with Bobbs-Merrill, the first authorized distribution of a foreign-made copy in the United States exhausts the copyright owner’s distribution right under §106(3). After such an authorized distribution, a library may lend, or a used-book dealer may resell, the foreign­ made copy without seeking the copyright owner’s permis­ sion. Cf. ante, at 19–21. For example, if Wiley, rather than Kirtsaeng, had imported into the United States and then sold the foreign­ made textbooks at issue in this case, Wiley’s §106(3) dis­ tribution right would have been exhausted under the rationale of Bobbs-Merrill. Purchasers of the textbooks would thus be free to dispose of the books as they wished without first gaining a license from Wiley. This line of reasoning, it must be acknowledged, signifi­ cantly curtails the independent effect of §109(a). If, as I maintain, the term “distribute” in §106(3) incorporates the first sale doctrine by virtue of Bobbs-Merrill, then §109(a)’s codification of that doctrine adds little to the regulatory regime.20 Section 109(a), however, does serve —————— that the exclusive rights to “publish” and “vend” works under the Copyright Act of 1947, §1(a), 61 Stat. 652–653, were “redundant”). 20 My position that Bobbs-Merrill lives on as a limiting construction of the §106(3) distribution right does not leave §109(a) with no work to do. There can be little doubt that the books at issue in Bobbs-Merrill were published and first sold in the United States. See Bobbs-Merrill Co. v. Straus, 139 F. 155, 157 (CC SDNY 1905) (the publisher claiming copy- right infringement in Bobbs-Merrill was incorporated and had its principal office in Indiana). See also Copyright Act of 1891, §3, 26 Stat. 1107–1108 (generally prohibiting importation, even by the copyright owner, of foreign-manufactured copies of copyrighted books); 4 Patry §13:40, at 13–111 (under the Copyright Act of 1891, “copies of books by both foreign and U. S. authors had to be printed in the United States”). But cf. ante, at 18 (asserting, without acknowledging the 1891 Copy­ right Act’s general prohibition against the importation of foreign-made copies of copyrighted books, that the Court is unable to find any “geo­ graphical distinctions . . . in Bobbs-Merrill ”). Thus, exhaustion occurs under Bobbs-Merrill only when a copy is distributed within the United Cite as: 568 U. S. ____ (2013) 27 GINSBURG, J., dissenting as a statutory bulwark against courts deviating from Bobbs-Merrill in a way that increases copyright owners’ control over downstream distribution, and legislative history indicates that is precisely the role Congress in­ tended §109(a) to play. Congress first codified the first sale doctrine in §41 of the Copyright Act of 1909, 35 Stat. 1084.21 It did so, the House Committee Report on the 1909 Act explains, “in order to make . . . clear that [Con­ gress had] no intention [of] enlarg[ing] in any way the construction to be given to the word ‘vend.’ ” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 19 (1909). According to the Committee Report, §41 was “not intended to change [exist­ ing law] in any way.” Ibid. The position I have stated and explained accords with this expression of congressional intent. In enacting §41 and its successors, I would hold, Congress did not “change . . . existing law,” ibid., by strip­ ping the word “vend” (and thus its substitute “distribute”) of the limiting construction imposed in Bobbs-Merrill. In any event, the reading of the Copyright Act to which I subscribe honors Congress’ aim in enacting §109(a) while the Court’s reading of the Act severely diminishes §602(a)(1)’s role. See supra, at 10–12. My position in no way tugs against the principle underlying §109(a)—i.e., that certain conduct by the copyright owner exhausts the —————— States with the copyright owner’s permission, not when it is distributed abroad. But under §109(a), as interpreted in Quality King, any author­ ized distribution of a U. S.-made copy, even a distribution occurring in a foreign country, exhausts the copyright owner’s distribution right under §106(3). See 523 U. S., at 145, n. 14. Section 109(a) therefore provides for exhaustion in a circumstance not reached by Bobbs-Merrill. 21 Section 41 of the 1909 Act provided: “[N]othing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.” 35 Stat. 1084. This language was repeated without material change in §27 of the Copyright Act of 1947, 61 Stat. 660. As noted above, see supra, at 2, 17 U.S. C. §109(a) sets out the current codification of the first sale doctrine. 28 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting owner’s §106(3) distribution right. The Court, in contrast, fails to give meaningful effect to Congress’ manifest intent in §602(a)(1) to grant copyright owners the right to control the importation of foreign-made copies of their works. 2 Other statutory prescriptions provide further protection against the absurd consequences imagined by the Court. For example, §602(a)(3)(C) permits “an organization oper­ ated for scholarly, educational, or religious purposes” to import, without the copyright owner’s authorization, up to five foreign-made copies of a non-audiovisual work— notably, a book—for “library lending or archival purposes.” But cf. ante, at 19–20 (suggesting that affirming the Se­ cond Circuit’s decision might prevent libraries from lend­ ing foreign-made books).22 The Court also notes that amici representing art muse­ ums fear that a ruling in Wiley’s favor would prevent museums from displaying works of art created abroad. Ante, at 22 (citing Brief for Association of Art Museum Directors et al.). These amici observe that a museum’s right to display works of art often depends on 17 U.S. C. §109(c). See Brief for Association of Art Museum Direc­ tors et al. 11–13.23 That provision addresses exhaustion of —————— 22 A group of amici representing libraries expresses the concern that lower courts might interpret §602(a)(3)(C) as authorizing only the importing, but not the lending, of foreign-made copies of non-audiovisual works. See Brief for American Library Association et al. 20. The United States maintains, and I agree, however, that §602(a)(3)(C) “is fairly (and best) read as implicitly authorizing lending, in addition to importation, of all works other than audiovisual works.” Brief for United States as Amicus Curiae 30, n. 6. 23 Title 17 U.S. C. §109(c) provides: “Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.” Cite as: 568 U. S. ____ (2013) 29 GINSBURG, J., dissenting a copyright owner’s exclusive right under §106(5) to publicly display the owner’s work. Because §109(c), like §109(a), applies only to copies “lawfully made under this title,” amici contend that a ruling in Wiley’s favor would prevent museums from invoking §109(c) with respect to foreign-made works of art. Id., at 11–13.24 Limiting §109(c) to U. S.-made works, however, does not bar art museums from lawfully displaying works made in other countries. Museums can, of course, seek the copy­ right owner’s permission to display a work. Furthermore, the sale of a work of art to a U. S. museum may carry with it an implied license to publicly display the work. See 2 Patry §5:131, at 5–280 (“[C]ourts have noted the potential availability of an implied nonexclusive licens[e] when the circumstances . . . demonstrate that the parties intended that the work would be used for a specific purpose.”). Displaying a work of art as part of a museum exhibition might also qualify as a “fair use” under 17 U.S. C. §107. Cf. Bouchat v. Baltimore Ravens Ltd. Partnership, 619 F.3d 301, 313–316 (CA4 2010) (display of copyrighted logo in museum-like exhibition constituted “fair use”). The Court worries about the resale of foreign-made consumer goods “contain[ing] copyrightable software pro­ grams or packaging.” Ante, at 21. For example, the Court observes that a car might be programmed with diverse forms of software, the copyrights to which might be owned by individuals or entities other than the manu- facturer of the car. Ibid. Must a car owner, the Court asks, obtain permission from all of these various copyright owners before reselling her car? Ibid. Although this question strays far from the one presented in this case and briefed by the parties, principles of fair use and implied —————— 24 The word “copy,” as it appears in §109(c), applies to the original of a work of art because the Copyright Act defines the term “copies” to “includ[e] the material object . . . in which the work is first fixed.” §101. 30 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting license (to the extent that express licenses do not exist) would likely permit the car to be resold without the copy­ right owners’ authorization.25 Most telling in this regard, no court, it appears, has been called upon to answer any of the Court’s “horribles” in an actual case. Three decades have passed since a federal court first published an opinion reading §109(a) as applicable exclusively to copies made in the United States. See Columbia Broadcasting System, Inc. v. Scorpio Music Distributors, Inc., 569 F. Supp. 47, 49 (ED Pa. 1983), summarily aff ’d, 738 F.2d 424 (CA3 1984) (table). Yet Kirtsaeng and his supporting amici cite not a single case in which the owner of a consumer good authorized for sale in the United States has been sued for copyright infringe­ ment after reselling the item or giving it away as a gift or to charity. The absence of such lawsuits is unsurprising. Routinely suing one’s customers is hardly a best business —————— 25 Principlesof fair use and implied license may also allow a U. S. tourist “who buys a copyrighted work of art, a poster, or . . . a bumper sticker” abroad to publicly “display it in America without the copyright owner’s further authorization.” Ante, at 15. (The tourist could lawfully bring the work of art, poster, or bumper sticker into the United States under 17 U.S. C. §602(a)(3)(B), which provides that §602(a)(1)’s impor­ tation ban does not apply to “importation . . . by any person arriving from outside the United States . . . with respect to copies . . . forming part of such person’s personal baggage.”). Furthermore, an individual clearly would not incur liability for infringement merely by displaying a foreign-made poster or other artwork in her home. See §106(5) (grant­ ing the owners of copyrights in “literary, musical, dramatic, and chore­ ographic works, pantomimes, and pictorial, graphic, or sculptural works” the exclusive right “to display the copyrighted work publicly” (emphasis added)). See also §101 (a work is displayed “publicly” if it is displayed “at a place open to the public or at any place where a sub­ stantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” (emphasis added)). Cf. 2 Nimmer §8.14[C][1], at 8–192.2(1) (“[A] performance limited to members of the family and invited guests is not a public performance.” (footnote omitted)). Cite as: 568 U. S. ____ (2013) 31 GINSBURG, J., dissenting practice.26 Manufacturers, moreover, may be hesitant to do business with software programmers taken to suing consumers. Manufacturers may also insist that soft- ware programmers agree to contract terms barring such lawsuits. The Court provides a different explanation for the absence of the untoward consequences predicted in its opinion—namely, that lower court decisions regarding the scope of §109(a)’s first sale prescription have not been uniform. Ante, at 23. Uncertainty generated by these conflicting decisions, the Court notes, may have deterred some copyright owners from pressing infringement claims. Ante, at 23–24. But if, as the Court suggests, there are a multitude of copyright owners champing at the bit to bring lawsuits against libraries, art museums, and consumers in an effort to exercise perpetual control over the down­ stream distribution and public display of foreign-made copies, might one not expect that at least a handful of such lawsuits would have been filed over the past 30 years? The absence of such suits indicates that the “practical problems” hypothesized by the Court are greatly exagger­ ated. Ante, at 24.27 They surely do not warrant disregard­ —————— 26 Exerting extensive control over secondary markets may not always be in a manufacturer’s best interest. Carmakers, for example, often trumpet the resale value of their vehicles. See, e.g., Nolan, UD grad leads Cadillac marketing, Dayton Daily News, Apr. 2, 2009, p. A8 (“Cadillac plays up its warranty coverage and reliable resale value to prospective customers.”). If the transaction costs of reselling vehicles were to rise, consumers’ perception of a new car’s value, and thus the price they are willing to pay for such a car, might fall—an outcome hardly favorable to automobile manufacturers. 27 It should not be overlooked that the ability to prevent importation of foreign-made copies encourages copyright owners such as Wiley to offer copies of their works at reduced prices to consumers in less devel­ oped countries who might otherwise be unable to afford them. The Court’s holding, however, prevents copyright owners from barring the importation of such low-priced copies into the United States, where they will compete with the higher priced editions copyright owners 32 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting ing Congress’ intent, expressed in §602(a)(1), to grant copyright owners the authority to bar the importation of foreign-made copies of their works. Cf. Hartford Under- writers Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it accord­ ing to its terms.” (internal quotation marks omitted)). VI To recapitulate, the objective of statutory interpretation is “to give effect to the intent of Congress.” American Trucking Assns., 310 U. S., at 542. Here, two congres- sional aims are evident. First, in enacting §602(a)(1), Con- gress intended to grant copyright owners permission to segment international markets by barring the importation of foreign-made copies into the United States. Second, as codification of the first sale doctrine underscores, Congress did not want the exclusive distribution right conferred in §106(3) to be boundless. Instead of harmonizing these objectives, the Court subordinates the first entirely to the second. It is unsurprising that none of the three major treatises on U. S. copyright law embrace the Court’s con­ struction of §109(a). See 2 Nimmer §8.12[B][6][c], at —————— make available for sale in this country. To protect their profit margins in the U. S. market, copyright owners may raise prices in less devel­ oped countries or may withdraw from such markets altogether. See Brief for United States as Amicus Curiae 26; Brief for Text and Aca­ demic Authors Association as Amicus Curiae 12; Brief for Association of American Publishers as Amicus Curiae 37. See also Chiappetta 357– 358 (a rule of national exhaustion “encourages entry and participation in developing markets at lower, locally more affordable prices by eliminating them as risky sources of cheaper parallel imports back into premium markets”). Such an outcome would disserve consumers—and especially students—in developing nations and would hardly advance the “American foreign policy goals” of supporting education and eco­ nomic development in such countries. Quality King Brief 25–26. Cite as: 568 U. S. ____ (2013) 33 GINSBURG, J., dissenting 8–184.34 to 8–184.35; 2 Goldstein §7.6.1.2(a), at 7:141; 4 Patry §§13:22, 13:44, 13:44.10. Rather than adopting the very international-exhaustion rule the United States has consistently resisted in international-trade negotiations, I would adhere to the national-exhaustion framework set by the Copyright Act’s text and history. Under that regime, codified in §602(a)(1), Kirtsaeng’s unauthorized importation of the foreign-made textbooks involved in this case infringed Wiley’s copyrights. I would therefore affirm the Second Circuit’s judgment

“In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress.” United States v. American Trucking Inc., Instead of adhering to the Legislature’s design, the Court today adopts an interpretation of the Copyright Act at odds with Congress’ aim to protect copyright owners against the unauthorized importation of low-priced, foreign­ made copies of their copyrighted works. The Court’s bold departure from Congress’ design is all the more stunning, for it places the United States at the vanguard of the movement for “international exhaustion” of copyrights—a movement the United States has steadfastly resisted on the world stage. To justify a holding that shrinks to insignificance copy­ right protection against the unauthorized importation of foreign-made copies, the Court identifies several “practical problems.” Ante, The Court’s parade of horribles, however, is largely imaginary. Congress’ objective in enacting 17 U.S. C. importation prohibition can be honored without generating the absurd conse­ quences hypothesized in the Court’s opinion. I dissent 2 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting from the Court’s embrace of “international exhaustion,” and would affirm the sound judgment of the Court of Appeals. I Because economic conditions and demand for particular goods vary across the globe, copyright owners have a financial incentive to charge different prices for copies of their works in different geographic regions. Their ability to engage in such price discrimination, however, is under- mined if arbitrageurs are permitted to import copies from low-price regions and sell them in high-price regions. The question in this case is whether the unauthorized importation of foreign-made copies constitutes copyright infringement under U. S. law. To answer this question, one must examine three provi­ sions of Title 17 of the U. S. Code: 109(a), and 602(a)(1). Section 106 sets forth the “exclusive rights” of a copyright owner, including the right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” This distribution right is limited by which provides: “Notwithstanding the provisions of section 106(3), the owner of a particular copy or phono- record lawfully made under this title is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Section 109(a) codifies the “first sale doc­ trine,” a doctrine articulated in Bobbs-Merrill Co. v. Straus, which held that a copyright owner could not control the price at which re­ tailers sold lawfully purchased copies of its work. The first sale doctrine recognizes that a copyright owner should not be permitted to exercise perpetual control over the distribution of copies of a copyrighted work. At some point—ordinarily the time of the first commercial sale— Cite as: 568 U. S. (2013) 3 GINSBURG, J., dissenting the copyright owner’s exclusive right under to control the distribution of a particular copy is exhausted, and from that point forward, the copy can be resold or otherwise redistributed without the copyright owner’s authorization. Section 602(a)(1) (2006 ed., Supp. V)1—last, but most critical, of the three copyright provisions bearing on this case—is an importation ban. It reads: “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringe- ment of the exclusive right to distribute copies or phonorecords under section 106, actionable under sec­ tion 501.” In Quality Distributors, the Court held that a copyright owner’s right to control importation under is a component of the distribution right set forth in and is therefore subject to codification of the first sale doctrine. Quality thus held that the importation of copies made in the United States but sold abroad did not rank as copyright infringement under at See also (GINSBURG, J., concurring) (Quality “involve[d] a ‘round trip’ journey, travel of the copies in question from the United States to places abroad, then back again”).2 —————— 1 In 2008, Congress renumbered what was previously as See Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PROIPA), Like the Court, I refer to the provision by its current numbering. 2 Although JUSTICE KAGAN’s concurrence suggests that Quality erred in “holding that limits” ante, that recent, unanimous holding must be taken as a given. See John R. Sand & Gravel (“[S]tare decisis in respect to statutory interpretation has ‘special force,’ for ‘Congress 4 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Important to the Court’s holding, the copies at issue in Quality had been “ ‘lawfully made under [Title 17]’ ”—a prerequisite for application of n. 9 (quoting ). Section 602(a)(1), the Court noted, would apply to “copies that were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” Drawing on an example discussed during a 1964 public meeting on pro­ posed revisions to the U. S. copyright laws,3 the Court stated: “If the author of [a] work gave the exclusive United States distribution rights—enforceable under the Act—to the publisher of the United States edition and the exclusive British distribution rights to the pub­ lisher of the British edition, presumably only those [copies] made by the publisher of the United States edition would be ‘lawfully made under this title’ within the meaning of The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a de­ fense to an action under )). The Court’s objective in this case should be to avoid unduly “constrict[ing] the scope of ban on unauthorized importation,” ante, at 1 (opinion of KAGAN, J.), while at the same time remaining faithful to Quality ’s holding and to the text and history of other Copyright Act provisions. This aim is not difficult to achieve. See Parts II–V, infra. JUSTICE KAGAN and I appear to agree to this extent: Congress meant the ban on unauthorized importation to have real force. See ante, at 3 (acknowl­ edging that “Wiley may have a point about what was de­ signed to do”). 3 See Quality Distributors, Inc. v. L’anza Research Int’l, Inc., 5 U.S. 148, n. 20 (quoting Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R. Judiciary Comm. Print 1964) (hereinafter Copyright Law Revision Part 4) (statement of Harriet Pilpel)). Cite as: 568 U. S. (2013) 5 GINSBURG, J., dissenting to an action under if there was a distribution of the copies).” As the District Court and the Court of Appeals concluded, see ; App. to Pet. for Cert. 70a–73a, application of the Quality analysis to the facts of this case would preclude any invocation of Petitioner Supap Kirtsaeng imported and then sold at a profit over 600 copies of copyrighted textbooks printed outside the United States by the Asian subsidiary of respondent John Wiley & Sons, Inc. (Wiley). App. 29– 34. See also ante, at 3–5 (opinion of the Court). In the words the Court used in Quality these copies “were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” 5 U. S., Section 109(a) therefore does not ap- ply, and Kirtsaeng’s unauthorized importation constitutes copyright infringement under The Court does not deny that under the language I have quoted from Quality Wiley would prevail. Ante, at 27. Nevertheless, the Court dismisses this language, to which all Members of the Quality Court subscribed, as ill-considered dictum. Ante, 7–28. I agree that the discussion was dictum in the sense that it was not essen­ tial to the Court’s judgment. See Quality 5 U. S., (GINSBURG, J., concurring) (“[W]e do not today resolve cases in which the allegedly infringing imports were manufactured abroad.”). But I disagree with the Court’s conclusion that this dictum was ill considered. Instead, for the reasons explained below, I would hold, consistently with Quality ’s dictum, that authorizes a copyright owner to bar the importation of a copy manufactured abroad for sale abroad. II The text of the Copyright Act demonstrates that Con­ gress intended to provide copyright owners with a potent 6 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting remedy against the importation of foreign-made copies of their copyrighted works. As the Court recognizes, ante, at 3, this case turns on the meaning of the phrase “lawfully made under this title” in In my view, that phrase is most sensibly read as referring to instances in which a copy’s creation is governed by, and conducted in compli­ ance with, Title 17 of the U. S. Code. This reading is consistent with the Court’s interpretation of similar lan­ guage in other statutes. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., (“under” in 11 U.S. C. a Bankruptcy Code provi­ sion exempting certain asset transfers from stamp taxes, means “pursuant to”); (1991) (the phrase “under section 554” in the Equal Access to Justice Act means “subject to” or “governed by” 5 U.S. C. (internal quotation marks omitted)). It also accords with dictionary definitions of the word “under.” See, e.g., American Heritage Dictionary 1887 (“under” means, among other things, “[s]ubject to the authority, rule, or control of ”). Section 109(a), properly read, affords Kirtsaeng no defense against Wiley’s claim of copyright infringement. The Copyright Act, it has been observed time and again, does not apply extraterritorially. See United Dictionary (copyright statute requiring that U. S. copyright notices be placed in all copies of a work did not apply to copies pub­ lished abroad because U. S. copyright laws have no “force” beyond the United States’ borders); 4 M. Nimmer & D. Nimmer, Copyright p. 17–18 (2012) (hereinafter Nimmer) (“[C]opyright laws do not have any extraterrito­ rial operation.”); 4 W. Patry, Copyright p. 13–66 (2012) (hereinafter Patry) (“Copyright laws are rigor- ously territorial.”). The printing of Wiley’s foreign­ manufactured textbooks therefore was not governed by Title 17. The textbooks thus were not “lawfully made Cite as: 568 U. S. (2013) 7 GINSBURG, J., dissenting under [Title 17],” the crucial precondition for application of And if does not apply, there is no dis­ pute that Kirtsaeng’s conduct constituted copyright in­ fringement under The Court’s point of departure is similar to mine. Ac­ cording to the Court, the phrase “ ‘lawfully made under this title’ means made ‘in accordance with’ or ‘in compli­ ance with’ the Copyright Act.” Ante, at 8. But the Court overlooks that, according to the very dictionaries it cites, ante, at 9, the word “under” commonly signals a relation­ ship of subjection, where one thing is governed or regu- lated by another. See Black’s Law Dictionary 1525 (6th ed. 1990) (“under” “frequently” means “inferior” or “subordi­ nate” (internal quotation marks omitted)); 18 Oxford English Dictionary 950 (“under” means, among other things, “[i]n accordance with (some regulative power or principle)” (emphasis added)). See also Webster’s Third New International Dictionary 2487 (1961) (“under” means, among other things, “in a condition of sub- jection, regulation, or subordination” and “suffering re­ striction, restraint, or control by”). Only by disregarding this established meaning of “under” can the Court arrive at the conclusion that Wiley’s foreign-manufactured text­ books were “lawfully made under” U. S. copyright law, even though that law did not govern their creation. It is anomalous, however, to speak of particular conduct as “lawful” under an inapplicable law. For example, one might say that driving on the right side of the road in England is “lawful” under U. S. law, but that would be so only because U. S. law has nothing to say about the sub­ ject. The governing law is English law, and English law demands that driving be done on the left side of the road.4 —————— 4 The Court asserts that my position gives the word “lawfully” in “little, if any, linguistic work to do.” Ante, at 9. That is not so. My reading gives meaning to each word in the phrase “lawfully made 8 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting The logical implication of the Court’s definition of the word “under” is that any copy manufactured abroad—even a piratical one made without the copyright owner’s author­ ization and in violation of the law of the country where it was created—would fall within the scope of Any such copy would have been made “in accordance with” or “in compliance with” the U. S. Copyright Act, in the sense that manufacturing the copy did not violate the Act (be­ cause the Act does not apply extraterritorially). The Court rightly refuses to accept such an absurd conclusion. Instead, it interprets as applying only to copies whose making actually complied with Title 17, or would have complied with Title 17 had Title 17 been ap­ plicable (i.e., had the copies been made in the United States). See ante, at 8 (“ ‘first sale’ doctrine would apply to copyrighted works as long as their manufacture met the requirements of American copyright law.”). Con­ gress, however, used express language when it called for such a counterfactual inquiry in 17 U.S. C. §(2) and (b). See (2) (“Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either consti­ tuted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106.” (emphasis added)); (“In a case where the making —————— under this title.” The word “made” signifies that the conduct at issue is the creation or manufacture of a copy. See Webster’s Third New International Dictionary 6 (1961) (defining “made” as “artificially produced by a manufacturing process”). The word “lawfully” indicates that for to apply, the copy’s creation must have complied with some body of law. Finally, the prepositional phrase “under this title” clarifies what that body of law is—namely, the copyright prescriptions contained in Title 17 of the U. S. Code. Cite as: 568 U. S. (2013) 9 GINSBURG, J., dissenting of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.” (emphasis added)). Had Congress intended courts to engage in a similarly hypo­ thetical inquiry under Congress would pre- sumably have included similar language in that section. See ; brackets in original)).5 —————— 5 Attempting to show that my reading of is susceptible to the same criticism, the Court points to the now-repealed “manufacturing clause,” which required “copies of a work consisting preponderantly of nondramatic literary material in the English language” to be “manufactured in the United States or Canada.” Copyright Act of 1976, Because Congress expressly referred to manu­ facturing in this provision, the Court contends, the phrase “lawfully made under this title” in cannot mean “manufactured in the United States.” Ante, at 19. This argument is a non sequitur. I do not contend that the phrases “lawfully made under this title” and “manu­ factured in the United States” are interchangeable. To repeat, I read the phrase “lawfully made under this title” as referring to instances in which a copy’s creation is governed by, and conducted in compliance with, Title 17 of the U. S. Code. See Not all copies “manu­ factured in the United States” will satisfy this standard. For example, piratical copies manufactured in the United States without the copy­ right owner’s authorization are not “lawfully made under [Title 17].” Nor would the phrase “lawfully manufactured in the United States” be an exact substitute for “lawfully made under this title.” The making of a copy may be lawful under Title 17 yet still violate some other provi­ sion of law. Consider, for example, a copy made with the copyright owner’s authorization by workers who are paid less than minimum wage. The copy would be “lawfully made under [Title 17]” in the sense that its creation would not violate any provision of that title, but the copy’s manufacturing would nonetheless be unlawful due to the viola­ 10 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Not only does the Court adopt an unnatural construc­ tion of the phrase “lawfully made under this title.” Concomitantly, the Court reduces to insignifi­ cance. As the Court appears to acknowledge, see ante, at 26, the only independent effect has under to­ day’s decision is to prohibit unauthorized importations carried out by persons who merely have possession of, but do not own, the imported copies. See 17 U.S. C. ( applies to any “owner of a particular copy or phonorecord lawfully made under this title” (emphasis added)).6 If this is enough to avoid rendering entirely “superfluous,” ante, 6, it hardly suffices to give the owner’s importation right the scope Congress intended it to have. Congress used broad language in ; it did so to achieve a broad objective. Had Congress intended simply to provide a copyright remedy against larcenous lessees, licensees, consignees, and bailees of films and other copyright-protected goods, see ante, at 13–14, 26, it likely would have used language tailored to that narrow purpose. See 2 Nimmer at 8–184.31, n. 432 (“It may be wondered whether potential causes of action [against licensees and the like] are more than theo­ retical.”). See also ante, (KAGAN, J., concurring) (the Court’s decision limits “to a fairly esoteric set of —————— tion of the minimum-wage laws. 6 When was originally enacted in 1976, it played an addi­ tional role—providing a private cause of action against importers of piratical goods. See Quality 5 U. S., at 146. In 2008, however, Congress amended to provide for such a cause of action in (2), which prohibits the unauthorized “[i]mportation into the United States of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have consti­ tuted an infringement of copyright if [Title 17] had been applicable.” See PROIPA, –4260. Thus, under the Court’s interpretation, the only conduct reached by but not (2) is a nonowner’s unauthorized importation of a nonpiratical copy. Cite as: 568 U. S. (2013) 11 GINSBURG, J., dissenting applications”).7 The Court’s decision also overwhelms 17 U.S. C. (3)’s exceptions to importation prohibi­ tion. 2 P. Goldstein, Copyright p. 7:141 (3d ed. 2012) (hereinafter Goldstein).8 Those exceptions permit the importation of copies without the copyright owner’s authorization for certain governmental, personal, schol- arly, educational, and religious purposes. 17 U.S. C. (3). Copies imported under these exceptions “will often be lawfully made gray market goods purchased through normal market channels abroad.” 2 Goldstein —————— 7 Notably, the Court ignores the history of which reveals that the primary purpose of the prescription was not to provide a remedy against rogue licensees, consignees, and bailees, against whom copyright owners could frequently assert breach-of-contract claims even in the absence of Instead, the primary purpose of was to reach third-party importers, enterprising actors like Kirtsaeng, against whom copyright owners could not assert contract claims due to lack of privity. See Part III, infra. 8 Section 602(a)(3) provides: “This subsection [i.e., ] does not apply to— “(A) importation or exportation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; “(B) importation or exportation, for the private use of the importer or exporter and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States or departing from the United States with respect to copies or phonorecords forming part of such person’s personal baggage; or “(C) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of sys­ tematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2).” 12 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting at 7:141.9 But if, as the Court holds, such copies can in any event be imported by virtue of (3)’s work has already been done. For example, had Congress conceived of sweep as the Court does, what earthly reason would there be to provide, as Congress did in (3)(C), that a library may import “no more than five copies” of a non-audiovisual work for its “lending or archival purposes”? The far more plausible reading of § and 602(a), then, is that Congress intended to apply to copies made in the United States, not to copies manufactured and sold abroad. That reading of the first sale and impor­ tation provisions leaves (3)’s exceptions with real, meaningful work to do. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sen­ tence, or word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)). In the range of circum- stances covered by the exceptions, (3) frees indi­ viduals and entities who purchase foreign-made copies abroad from the requirement they would otherwise face under of obtaining the copyright owner’s per­ mission to import the copies into the United States.10 —————— 9 The term “gray market good” refers to a good that is “imported out­ side the distribution channels that have been contractually negotiated by the intellectual property owner.” Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429 Such goods are also commonly called “parallel imports.” 10 The Court asserts that its reading of is bolstered by which extends the copyright “protection[s]” of Title 17 to a wide variety of foreign works. See ante, at 10–11. The “protection under this title” afforded by however, is merely protection against infringing conduct within the United States, the only place where Title 17 applies. See 4 W. Patry, Copyright pp. 13–128 to 13–129 (2012) (hereinafter Patry). Thus, my reading of the phrase “under this title” in Cite as: 568 U. S. (2013) 13 GINSBURG, J., dissenting III The history of reinforces the conclusion I draw from the text of the relevant provisions: does not apply to copies manufactured abroad. Section 602(a)(1) was enacted as part of the Copyright Act of 1976, –2590. That Act was the product of a lengthy revision effort overseen by the U. S. Copyright Office. See Mills Music, In its initial 1961 report on recommended revisions, the Copyright Office noted that publishers had “suggested that the [then-existing] import ban on piratical copies should be extended to bar the importation of foreign edition[s]” in violation of “agreements to divide interna­ tional markets for copyrighted works.” Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 126 (H. R. Judiciary Comm. Print 1961) (herein­ after Copyright Law Revision). See Copyright Act of 1947, (“The importation into the United States of any piratical copies of any work copyrighted —————— is consistent with Congress’ use of that phrase in Fur­ thermore, describes which works are entitled to copyright protec­ tion under U. S. law. But no one disputes that Wiley’s copyrights in the works at issue in this case are valid. The only question is whether Kirtsaeng’s importation of copies of those works infringed Wiley’s copyrights. It is basic to copyright law that “[o]wnership of a copyright is distinct from ownership of any material object in which the work is embodied.” 17 U.S. C. See also (“ ‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”). Given the distinction copyright law draws between works and copies, is inapposite to the question here presented. 4 Patry at 13–129 (“There is no connection, linguistically or substantively, between Section[s] 104 and 109: Section 104 deals with national eligibility for the intangible work of authorship; Section 109(a) deals with the tangible, physical embodiment of the work, the ‘copy.’ ”). 14 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting in the United States is prohibited.”). The Copyright Office originally recommended against such an extension of the importation ban, reasoning that enforcement of territorial restrictions was best left to contract law. Copy­ right Law Revision 126. Publishing-industry representatives argued strenuously against the position initially taken by the Copyright Of­ fice. At a 1962 panel discussion on the Copyright Office’s report, for example, Horace Manges of the American Book Publishers Council stated: “When a U. S. book publisher enters into a contract with a British publisher to acquire exclusive U. S. rights for a particular book, he often finds that the English edition of that particular book finds its way into this country. Now it’s all right to say, ‘Com­ mence a lawsuit for breach of contract.’ But this is expensive, burdensome, and, for the most part, inef­ fective.” Copyright Law Revision Part 2: Discussion and Comments on Report of the Register of Copy­ rights on the General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., 212 (H. R. Judiciary Comm. Print 1963). Sidney Diamond, representing London Records, elabo­ rated on Manges’ statement. “There are many situations,” he explained, “in which it is not necessarily a question of the inadequacy of a contract remedy—in the sense that it may be difficult or not quick enough to solve the particular problem.” “Very frequently,” Diamond stated, publishers “run into a situation where copies of [a] work produced in a foreign country may be shipped [to the United States] without violating any contract of the U. S. copyright proprietor.” To illustrate, Diamond noted, if a “British publisher [sells a copy] to an individual who in turn ship[s] it over” to the United States, the indi­ vidual’s conduct would not “violate [any] contract between Cite as: 568 U. S. (2013) 15 GINSBURG, J., dissenting the British and the American publisher.” In such a case, “no possibility of any contract remedy” would exist. The facts of Kirtsaeng’s case fit Diamond’s example, save that the copies at issue here were printed and ini- tially sold in Asia rather than Great Britain. After considering comments on its 1961 report, the Copyright Office “prepared a preliminary draft of provi­ sions for a new copyright statute.” Copyright Law Revi­ sion Part 3: Preliminary Draft for Revised U. S. Copyright Law and Discussions and Comments on the Draft, 88th Cong., 2d Sess., V (H. R. Judiciary Comm. Print 1964). Section 44 of the draft statute addressed the concerns raised by publishing-industry representatives. In particu­ lar, provided: “Importation into the United States of copies or rec­ ords of a work for the purpose of distribution to the public shall, if such articles are imported without the authority of the owner of the exclusive right to dis­ tribute copies or records under this title, constitute an infringement of copyright actionable under section 35 [i.e., the section providing for a private cause of action for copyright infringement].” at 32–33. In a 1964 panel discussion regarding the draft statute, Abe Goldman, the Copyright Office’s General Counsel, left no doubt about the meaning of It represented, he explained, a “shif[t]” from the Copyright Office’s 1961 report, which had recommended against using copyright law to facilitate publishers’ efforts to segment interna­ tional markets. Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 203 (H. R. Judiciary Comm. Print 1964). Section 44(a), Gold­ man stated, would allow copyright owners to bring in­ fringement actions against importers of “foreign copies that were made under proper authority.” See also 16 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting 05–206 (Goldman agreed with a speaker’s com­ ment that “enlarge[d]” U. S. copyright law by ex­ tending import prohibitions “to works legally produced in Europe” and other foreign countries).11 The next step in the copyright revision process was the introduction in Congress of a draft bill on July 20, 1964. See Copyright Law Revision Part 5: 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess., III (H. R. Judiciary Comm. Print 1965). After another round of public comments, a revised bill was introduced on Feb­ ruary 4, 1965. See Copyright Law Revision Part 6: Sup­ plementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revi­ sion Bill, 89th Cong., 1st Sess., V (H. R. Judiciary Comm. Print 1965) (hereinafter Copyright Law Revision Part 6). In language closely resembling the statutory text later enacted by Congress, of the 1965 bill provided: “Importation into the United States, without the au­ thority of the owner of copyright under this title, of copies or phonorecords of a work for the purpose of distribution to the public is an infringement of the ex­ clusive right to distribute copies or phonorecords un­ der section 106, actionable under section 501.” at 292.12 —————— 11 As the Court observes, ante, 9, Irwin Karp of the Authors League of America stated at the 1964 panel discussion that ran counter to “the very basic concept of copyright law that, once you’ve sold a copy legally, you can’t restrict its resale.” Copyright Law Revision Part 4, 12. When asked if he was “presenting an argument against” however, Karp responded that he was “neutral on th[e] provision.” There is thus little reason to believe that any changes to the wording of before its codification in were made in response to Karp’s discussion of “the problem of restricting [the] transfer of lawfully obtained [foreign] copies.” 12 There is but one difference between this language from the 1965 bill and the corresponding language in the current version of : Cite as: 568 U. S. (2013) 17 GINSBURG, J., dissenting The Court implies that the 1965 bill’s “explici[t] re­ fer[ence] to showed a marked departure from of the Copyright Office’s prior draft. Ante, 9. The Copyright Office, however, did not see it that way. In its summary of the 1965 bill’s provisions, the Copyright Office observed that of the 1965 bill, like of the Copyright Office’s prior draft, see at 15–16, permit­ ted copyright owners to bring infringement actions against unauthorized importers in cases “where the copyright owner had authorized the making of [the imported] copies in a foreign country for distribution only in that country.” Copyright Law Revision Part 6, at 1–150. See also at XXVI (Under of the 1965 bill, “[a]n unauthorized importer could be enjoined and sued for damages both where the copies or phonorecords he was importing were ‘piratical’ (that is, where their making would have constituted an infringement if the U. S. copyright law could have been applied), and where their making was ‘lawful.’ ”). The current text of was finally enacted into law in 1976. See Copyright Act of 1976, 90 Stat. 2589–2590. The House and Senate Committee Reports on the 1976 Act demonstrate that Congress understood, as did the Copyright Office, just what that text meant. Both Reports state: “Section 602 [deals] with two separate situations: im­ portation of ‘piratical’ articles (that is, copies or phonorecords made without any authorization of the —————— In the current version, the phrase “for the purpose of distribution to the public” is omitted and the phrase “that have been acquired outside the United States” appears in its stead. There are no material differences between the quoted language from the 1965 bill and the corresponding language contained in the 1964 bill. See Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., 292–293 (H. R. Judiciary Comm. Print 1965). 18 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting copyright owner), and unauthorized importation of copies or phonorecords that were lawfully made. The general approach of section 602 is to make unauthor- ized importation an act of infringement in both cases, but to permit the Bureau of Customs to prohibit im­ portation only of ‘piratical’ articles.” S. Rep. No. 94– 473, p. 151 (1975) (emphasis added). See also H. R. Rep. No. 94–1476, p. 169 (1976) (same). In sum, the legislative history of the Copyright Act of 1976 is hardly “inconclusive.” Ante, 8. To the con- trary, it confirms what the plain text of the Act conveys: Congress intended to provide copyright owners with a remedy against the unauthorized importation of foreign-made copies of their works, even if those copies were made and sold abroad with the copyright owner’s authorization.13 IV Unlike the Court’s holding, my position is consistent with the stance the United States has taken in international­ trade negotiations. This case bears on the highly con­ tentious trade issue of interterritorial exhaustion. The issue arises because intellectual property law is territorial in nature, see which means that creators of intellectual property “may hold a set of parallel” intellec­ tual property rights under the laws of different nations. Chiappetta, The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340–341 (2000) (hereinafter Chiappetta). There is no international con­ —————— 13 The Court purports to find support for its position in the House and Senate Committee Reports on the 1976 Copyright Act. Ante, at 30–31. It fails to come up with anything in the Act’s legislative history, how­ ever, showing that Congress understood the words “lawfully made under this title” in to encompass foreign-made copies. Cite as: 568 U. S. (2013) 19 GINSBURG, J., dissenting sensus on whether the sale in one country of a good in- corporating protected intellectual property exhausts the intellectual property owner’s right to control the distribu­ tion of that good elsewhere. Indeed, the members of the World Trade Organization, “agreeing to disagree,”14 pro­ vided in Article 6 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Apr. 15, 1994, 33 I. L. M. 1197, 1200, that “nothing in this Agree­ ment shall be used to address the issue of exhaustion.” See Chiappetta 346 (observing that exhaustion of intellec­ tual property rights was “hotly debated” during the TRIPS negotiations and that Article 6 “reflects [the negotiators’] ultimate inability to agree” on a single international standard). Similar language appears in other treaties to which the United States is a party. See World Intellectual Property Organization (WIPO) Copyright Treaty, Art. 6(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 7 (“Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the ex­ haustion of the right [to control distribution of copies of a copyrighted work] applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.”); WIPO Perfor­ mances and Phonograms Treaty, Art. 8(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 28 (containing language nearly identical to Article 6(2) of the WIPO Copyright Treaty). In the absence of agreement at the international level, each country has been left to choose for itself the exhaus­ tion framework it will follow. One option is a national­ exhaustion regime, under which a copyright owner’s right —————— 14 Chiappetta,The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340 (2000) (hereinafter Chiappetta) (internal quotation marks omitted). 20 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting to control distribution of a particular copy is exhausted only within the country in which the copy is sold. See Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429, 430 (hereinafter Forsyth & Rothnie). Another option is a rule of international exhaustion, under which the authorized distribution of a particular copy anywhere in the world exhausts the copy­ right owner’s distribution right everywhere with respect to that copy. See The European Union has adopted the intermediate approach of regional exhaustion, under which the sale of a copy anywhere within the European Economic Area exhausts the copyright owner’s distribu­ tion right throughout that region. See Section 602(a)(1), in my view, ties the United States to a national-exhaustion framework. The Court’s decision, in con- trast, places the United States solidly in the international­ exhaustion camp. Strong arguments have been made both in favor of, and in opposition to, international exhaustion. See Chiappetta 360 (“[r]easonable people making valid points can, and do, reach conflicting conclusions” regarding the desirability of international exhaustion). International exhaustion subjects copyright-protected goods to competition from lower priced imports and, to that extent, benefits con- sumers. Correspondingly, copyright owners profit from a national-exhaustion regime, which also enlarges the mon­ etary incentive to create new copyrightable works. See Forsyth & Rothnie 432–437 (surveying arguments for and against international exhaustion). Weighing the competing policy concerns, our Govern­ ment reached the conclusion that widespread adoption of the international-exhaustion framework would be incon­ sistent with the long-term economic interests of the United States. See Brief for United States as Amicus Curiae in Quality O. T. 1997, No. 96–1470, pp. 22–26 (herein­ Cite as: 568 U. S. (2013) 21 GINSBURG, J., dissenting after Quality Brief).15 Accordingly, the United States has steadfastly “taken the position in international trade negotiations that domestic copyright owners should have the right to prevent the unauthorized importation of copies of their work sold abroad.” The United States has “advanced this position in multilateral trade negotiations,” including the negotiations on the TRIPS Agreement. See also D. Gervais, The TRIPS Agreement: Drafting History and Analysis p. 199 It has also taken a dim view of our trading partners’ adoption of legislation incorporating elements of international exhaustion. See Clapperton & Corones, Locking in Customers, Locking Out Competitors: Anti- Circumvention Laws in Australia and Their Potential Effect on Competition in High Technology Markets, 30 Melbourne U. L. Rev. 657, 664 (2006) (United States expressed concern regarding international-exhaustion leg- islation in Australia); Montén, Comment, The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? 9 Marq. Intellectual —————— 15 The Court states that my “reliance on the Solicitor General’s posi­ tion in Quality is undermined by his agreement in that case with [the] reading of ” that the Court today adopts. Ante, at 33. The United States’ principal concern in both Quality and this case, however, has been to protect copyright owners’ “right to prevent paral­ lel imports.” Brief for United States as Amicus Curiae in Quality O. T. 1997, No. 96–1470, p. 6 (hereinafter Quality Brief). See also Brief for United States as Amicus Curiae 14 (arguing that Kirtsaeng’s interpretation of which the Court adopts, would “subver[t] Section 602(a)(1)’s ban on unauthorized importation”). In Quality the Solicitor General urged this Court to hold that codification of the first sale doctrine does not limit the right to control importation set forth in Quality Brief 7–30. After Quality rejected that contention, the United States reconsidered its position, and it now endorses the interpretation of the phrase “lawfully made under this title” I would adopt. Brief for United States as Amicus Curiae 6–7, 13–14. 22 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Property L. Rev. 387, 417–418 (2005) (same with respect to New Zealand and Taiwan). Even if the text and history of the Copyright Act were am- biguous on the answer to the question this case presents— which they are not, see Parts II–III, supra16—I would resist a holding out of accord with the firm position the United States has taken on exhaustion in internation­ al negotiations. Quality I acknowledge, discounted the Government’s concerns about potential inconsistency with United States obligations under certain bilateral trade agreements. See 5 U. S., at 153–154. See also Quality Brief 22–24 (listing the agreements). That decision, however, dealt only with copyright-protected products made in the United States. See 5 U. S., (GINSBURG, J., concurring). Quality left open the question whether owners of U. S. copyrights could retain control over the importation of copies manufactured and sold abroad—a point the Court obscures, see ante, at 33 (arguing that Quality “significantly eroded” the national-exhaustion principle that, in my view, embraces). The Court today answers that question with a resounding “no,” and in doing so, it risks undermining the United States’ credibility on the world stage. While the Government has urged our trading partners to refrain from adopting international-exhaustion regimes that could benefit consumers within their borders but would impact adversely on intellectual-property producers in the United States, the Court embraces an international-exhaustion rule that could benefit U. S. consumers but would likely —————— 16 Congress hardly lacks capacity to provide for international exhaus­ tion when that is its intent. Indeed, Congress has expressly provided for international exhaustion in the narrow context of semiconductor chips embodying protected “mask works.” See 17 U.S. C. 906(b). See also 2 M. Nimmer & D. Nimmer, Copyright p. 8A–37 (2012) (hereinafter Nimmer) (“[T]he first sale doctrine under expressly immunizes unauthorized importation.”). Cite as: 568 U. S. (2013) GINSBURG, J., dissenting disadvantage foreign holders of U. S. copyrights. This dissonance scarcely enhances the United States’ “role as a trusted partner in multilateral endeavors.” Vimar Seguros y Reaseguros, S. 539 (1995). V I turn now to the Court’s justifications for a decision difficult to reconcile with the Copyright Act’s text and history. A The Court asserts that its holding “is consistent with antitrust laws that ordinarily forbid market divisions.” Ante, at 32. See also ante, at 18 (again referring to anti­ trust principles). Section 602(a)(1), however, read as I do and as the Government does, simply facilitates copyright owners’ efforts to impose “vertical restraints” on distribu­ tors of copies of their works. See Forsyth & Rothnie 435 (“Parallel importation restrictions enable manufacturers and distributors to erect ‘vertical restraints’ in the market through exclusive distribution agreements.”). See gener- ally Leegin Creative Leather Products, We have held that vertical restraints are not per se illegal under of the Sherman Act, 15 U.S. C. because such “restraints can have procompetitive effects.” 551 U. S., at 881–882.17 —————— 17 Despite the Court’s suggestion to the contrary, this case in no way implicates the per se antitrust prohibition against horizontal “ ‘[a]greements between competitors to allocate territories to minimize competition.’ ” Ante, at 32 (quoting Palmer v. BRG of Ga., Inc., 8 U.S. 46, (1990) ). Wiley is not requesting authority to enter into collusive agreements with other textbook publishers that would, for example, make Wiley the exclusive supplier of textbooks on particular subjects within particular geographic regions. Instead, Wiley asserts no more than the prerogative to impose vertical restraints 24 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting B The Court sees many “horribles” following from a hold­ ing that the phrase “lawfully made under this title” does not encompass foreign-made copies. Ante, (internal quotation marks omitted). If excluded foreign-made copies, the Court fears, then copyright own­ ers could exercise perpetual control over the downstream distribution or public display of such copies. A ruling in Wiley’s favor, the Court asserts, would shutter libraries, put used-book dealers out of business, cripple art muse­ ums, and prevent the resale of a wide range of consumer goods, from cars to calculators. Ante, at 19–22. See also ante, –3 (KAGAN, J., concurring) (expressing concern about “imposing downstream liability on those who pur­ chase and resell in the United States copies that happen to have been manufactured abroad”). Copyright law and precedent, however, erect barriers to the anticipated horribles.18 1 Recognizing that foreign-made copies fall outside the ambit of would not mean they are forever free of the first sale doctrine. As earlier observed, see the Court stated that doctrine initially in its 1908 Bobbs- —————— on the distribution of its own textbooks. See Hovenkamp, Post-Sale Restraints and Competitive Harm: The First Sale Doctrine in Perspec­ tive, 66 N. Y. U. Ann. Survey Am. L. 487, 488 (“vertical re­ straints” include “limits [on] the way a seller’s own product can be distributed”). 18 As the Court observes, ante, at 32–33, the United States stated at oral argument that the types of “horribles” predicted in the Court’s opinion would, if they came to pass, be “worse than the frustration of market segmentation” that will result from the Court’s interpretation of Tr. of Oral Arg. 51. The United States, however, recognized that this purported dilemma is a false one. As the United States explained, the Court’s horribles can be avoided while still giving mean­ ingful effect to ban on unauthorized importation. Cite as: 568 U. S. (2013) 25 GINSBURG, J., dissenting Merrill decision. At that time, no statutory provision expressly codified the first sale doctrine. Instead, copy­ right law merely provided that copyright owners had “the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending” their works. Copyright Act of 1891, In Bobbs-Merrill, the Court addressed the scope of the statutory right to “ven[d].” In granting that right, the Court held, Congress did not intend to permit copyright owners “to fasten a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it and had given a satisfactory price for it.” –350. “[O]ne who has sold a copy­ righted article without restriction,” the Court ex­ plained, “has parted with all right to control the sale of it.” Thus, “[t]he purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.” Under the logic of Bobbs-Merrill, the sale of a foreign­ manufactured copy in the United States carried out with the copyright owner’s authorization would exhaust the copyright owner’s right to “vend” that copy. The copy could thenceforth be resold, lent out, or otherwise redis­ tributed without further authorization from the copyright owner. Although uses the word “distribute” rather than “vend,” there is no reason to think Congress intended the word “distribute” to bear a meaning different from the construction the Court gave to the word “vend” in Bobbs- Merrill. See (emphasizing that the question before the Court was “purely [one] of statutory construction”).19 —————— 19 It appears that the Copyright Act of 1976 omitted the word “vend” and introduced the word “distribute” to avoid the “redundan[cy]” present in pre-1976 law. Copyright Law Revision: Report of the Regis­ ter of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 21 (H. R. Judiciary Comm. Print 1961) (noting 26 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Thus, in accord with Bobbs-Merrill, the first authorized distribution of a foreign-made copy in the United States exhausts the copyright owner’s distribution right under After such an authorized distribution, a library may lend, or a used-book dealer may resell, the foreign­ made copy without seeking the copyright owner’s permis­ sion. Cf. ante, at 19–21. For example, if Wiley, rather than Kirtsaeng, had imported into the United States and then sold the foreign­ made textbooks at issue in this case, Wiley’s dis­ tribution right would have been exhausted under the rationale of Bobbs-Merrill. Purchasers of the textbooks would thus be free to dispose of the books as they wished without first gaining a license from Wiley. This line of reasoning, it must be acknowledged, signifi­ cantly curtails the independent effect of If, as I maintain, the term “distribute” in incorporates the first sale doctrine by virtue of Bobbs-Merrill, then codification of that doctrine adds little to the regulatory regime.20 Section 109(a), however, does serve —————— that the exclusive rights to “publish” and “vend” works under the Copyright Act of 1947, (a), –653, were “redundant”). 20 My position that Bobbs-Merrill lives on as a limiting construction of the distribution right does not leave with no work to do. There can be little doubt that the books at issue in Bobbs-Merrill were published and first sold in the United States. See Bobbs-Merrill Co. v. Straus, F. 155, (the publisher claiming copy- right infringement in Bobbs-Merrill was incorporated and had its principal office in Indiana). See also Copyright Act of 1891, 26 Stat. 1107–1108 (generally prohibiting importation, even by the copyright owner, of foreign-manufactured copies of copyrighted books); 4 Patry 3:40, at 13–111 (under the Copyright Act of 1891, “copies of books by both foreign and U. S. authors had to be printed in the United States”). But cf. ante, at 18 (asserting, without acknowledging the 1891 Copy­ right Act’s general prohibition against the importation of foreign-made copies of copyrighted books, that the Court is unable to find any “geo­ graphical distinctions in Bobbs-Merrill ”). Thus, exhaustion occurs under Bobbs-Merrill only when a copy is distributed within the United Cite as: 568 U. S. (2013) 27 GINSBURG, J., dissenting as a statutory bulwark against courts deviating from Bobbs-Merrill in a way that increases copyright owners’ control over downstream distribution, and legislative history indicates that is precisely the role Congress in­ tended to play. Congress first codified the first sale doctrine in of the Copyright Act of 1909, 35 Stat. 1084.21 It did so, the House Committee Report on the 1909 Act explains, “in order to make clear that [Con­ gress had] no intention [of] enlarg[ing] in any way the construction to be given to the word ‘vend.’ ” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 19 (1909). According to the Committee Report, was “not intended to change [exist­ ing law] in any way.” The position I have stated and explained accords with this expression of congressional intent. In enacting and its successors, I would hold, Congress did not “change existing law,” ib by strip­ ping the word “vend” (and thus its substitute “distribute”) of the limiting construction imposed in Bobbs-Merrill. In any event, the reading of the Copyright Act to which I subscribe honors Congress’ aim in enacting while the Court’s reading of the Act severely diminishes role. See at 10–12. My position in no way tugs against the principle underlying —i.e., that certain conduct by the copyright owner exhausts the —————— States with the copyright owner’s permission, not when it is distributed abroad. But under as interpreted in Quality any author­ ized distribution of a U. S.-made copy, even a distribution occurring in a foreign country, exhausts the copyright owner’s distribution right under See 5 U. S., at 145, n. 14. Section 109(a) therefore provides for exhaustion in a circumstance not reached by Bobbs-Merrill. 21 Section 41 of the 1909 Act provided: “[N]othing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.” This language was repeated without material change in of the Copyright Act of 1947, As noted above, see 17 U.S. C. sets out the current codification of the first sale doctrine. 28 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting owner’s distribution right. The Court, in contrast, fails to give meaningful effect to Congress’ manifest intent in to grant copyright owners the right to control the importation of foreign-made copies of their works. 2 Other statutory prescriptions provide further protection against the absurd consequences imagined by the Court. For example, (3)(C) permits “an organization oper­ ated for scholarly, educational, or religious purposes” to import, without the copyright owner’s authorization, up to five foreign-made copies of a non-audiovisual work— notably, a book—for “library lending or archival purposes.” But cf. ante, at 19–20 (suggesting that affirming the Se­ cond Circuit’s decision might prevent libraries from lend­ ing foreign-made books).22 The Court also notes that amici representing art muse­ ums fear that a ruling in Wiley’s favor would prevent museums from displaying works of art created abroad. Ante, (citing Brief for Association of Art Museum Directors et al.). These amici observe that a museum’s right to display works of art often depends on 17 U.S. C. 09(c). See Brief for Association of Art Museum Direc­ tors et al. 11–13. That provision addresses exhaustion of —————— 22 A group of amici representing libraries expresses the concern that lower courts might interpret (3)(C) as authorizing only the importing, but not the lending, of foreign-made copies of non-audiovisual works. See Brief for American Library Association et al. 20. The United States maintains, and I agree, however, that (3)(C) “is fairly (and best) read as implicitly authorizing lending, in addition to importation, of all works other than audiovisual works.” Brief for United States as Amicus Curiae 30, n. 6. Title 17 U.S. C. 09(c) provides: “Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.” Cite as: 568 U. S. (2013) 29 GINSBURG, J., dissenting a copyright owner’s exclusive right under 06(5) to publicly display the owner’s work. Because 09(c), like applies only to copies “lawfully made under this title,” amici contend that a ruling in Wiley’s favor would prevent museums from invoking 09(c) with respect to foreign-made works of art. at 11–13.24 Limiting 09(c) to U. S.-made works, however, does not bar art museums from lawfully displaying works made in other countries. Museums can, of course, seek the copy­ right owner’s permission to display a work. Furthermore, the sale of a work of art to a U. S. museum may carry with it an implied license to publicly display the work. See 2 Patry at 5–280 (“[C]ourts have noted the potential availability of an implied nonexclusive licens[e] when the circumstances demonstrate that the parties intended that the work would be used for a specific purpose.”). Displaying a work of art as part of a museum exhibition might also qualify as a “fair use” under 17 U.S. C. 07. Cf. Bouchat v. Baltimore Ravens Ltd. Partnership, 619 F.3d 301, 313–316 (CA4 2010) (display of copyrighted logo in museum-like exhibition constituted “fair use”). The Court worries about the resale of foreign-made consumer goods “contain[ing] copyrightable software pro­ grams or packaging.” Ante, 1. For example, the Court observes that a car might be programmed with diverse forms of software, the copyrights to which might be owned by individuals or entities other than the manu- facturer of the car. Must a car owner, the Court asks, obtain permission from all of these various copyright owners before reselling her car? Although this question strays far from the one presented in this case and briefed by the parties, principles of fair use and implied —————— 24 The word “copy,” as it appears in 09(c), applies to the original of a work of art because the Copyright Act defines the term “copies” to “includ[e] the material object in which the work is first fixed.” 30 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting license (to the extent that express licenses do not exist) would likely permit the car to be resold without the copy­ right owners’ authorization.25 Most telling in this regard, no court, it appears, has been called upon to answer any of the Court’s “horribles” in an actual case. Three decades have passed since a federal court first published an opinion reading as applicable exclusively to copies made in the United States. See Columbia Broadcasting System, summarily aff ’d, Yet Kirtsaeng and his supporting amici cite not a single case in which the owner of a consumer good authorized for sale in the United States has been sued for copyright infringe­ ment after reselling the item or giving it away as a gift or to charity. The absence of such lawsuits is unsurprising. Routinely suing one’s customers is hardly a best business —————— 25 Principlesof fair use and implied license may also allow a U. S. tourist “who buys a copyrighted work of art, a poster, or a bumper sticker” abroad to publicly “display it in America without the copyright owner’s further authorization.” Ante, at 15. (The tourist could lawfully bring the work of art, poster, or bumper sticker into the United States under 17 U.S. C. (3)(B), which provides that impor­ tation ban does not apply to “importation by any person arriving from outside the United States with respect to copies forming part of such person’s personal baggage.”). Furthermore, an individual clearly would not incur liability for infringement merely by displaying a foreign-made poster or other artwork in her home. See 06(5) (grant­ ing the owners of copyrights in “literary, musical, dramatic, and chore­ ographic works, pantomimes, and pictorial, graphic, or sculptural works” the exclusive right “to display the copyrighted work publicly” (emphasis added)). See also (a work is displayed “publicly” if it is displayed “at a place open to the public or at any place where a sub­ stantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” (emphasis added)). Cf. 2 Nimmer at 8–192.2(1) (“[A] performance limited to members of the family and invited guests is not a public performance.” (footnote omitted)). Cite as: 568 U. S. (2013) 31 GINSBURG, J., dissenting practice.26 Manufacturers, moreover, may be hesitant to do business with software programmers taken to suing consumers. Manufacturers may also insist that soft- ware programmers agree to contract terms barring such lawsuits. The Court provides a different explanation for the absence of the untoward consequences predicted in its opinion—namely, that lower court decisions regarding the scope of first sale prescription have not been uniform. Ante, at Uncertainty generated by these conflicting decisions, the Court notes, may have deterred some copyright owners from pressing infringement claims. Ante, at –24. But if, as the Court suggests, there are a multitude of copyright owners champing at the bit to bring lawsuits against libraries, art museums, and consumers in an effort to exercise perpetual control over the down­ stream distribution and public display of foreign-made copies, might one not expect that at least a handful of such lawsuits would have been filed over the past 30 years? The absence of such suits indicates that the “practical problems” hypothesized by the Court are greatly exagger­ ated. Ante,27 They surely do not warrant disregard­ —————— 26 Exerting extensive control over secondary markets may not always be in a manufacturer’s best interest. Carmakers, for example, often trumpet the resale value of their vehicles. See, e.g., Nolan, UD grad leads Cadillac marketing, Dayton Daily News, Apr. 2, 2009, p. A8 (“Cadillac plays up its warranty coverage and reliable resale value to prospective customers.”). If the transaction costs of reselling vehicles were to rise, consumers’ perception of a new car’s value, and thus the price they are willing to pay for such a car, might fall—an outcome hardly favorable to automobile manufacturers. 27 It should not be overlooked that the ability to prevent importation of foreign-made copies encourages copyright owners such as Wiley to offer copies of their works at reduced prices to consumers in less devel­ oped countries who might otherwise be unable to afford them. The Court’s holding, however, prevents copyright owners from barring the importation of such low-priced copies into the United States, where they will compete with the higher priced editions copyright owners 32 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting ing Congress’ intent, expressed in to grant copyright owners the authority to bar the importation of foreign-made copies of their works. Cf. Hartford Under- writers Ins. 6 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it accord­ ing to its terms.” (internal quotation marks omitted)). VI To recapitulate, the objective of statutory interpretation is “to give effect to the intent of Congress.” American Trucking 310 U. S., at Here, two congres- sional aims are evident. First, in enacting Con- gress intended to grant copyright owners permission to segment international markets by barring the importation of foreign-made copies into the United States. Second, as codification of the first sale doctrine underscores, Congress did not want the exclusive distribution right conferred in to be boundless. Instead of harmonizing these objectives, the Court subordinates the first entirely to the second. It is unsurprising that none of the three major treatises on U. S. copyright law embrace the Court’s con­ struction of See 2 Nimmer at —————— make available for sale in this country. To protect their profit margins in the U. S. market, copyright owners may raise prices in less devel­ oped countries or may withdraw from such markets altogether. See Brief for United States as Amicus Curiae 26; Brief for Text and Aca­ demic Authors Association as Amicus Curiae 12; Brief for Association of American Publishers as Amicus Curiae 37. See also Chiappetta 357– 358 (a rule of national exhaustion “encourages entry and participation in developing markets at lower, locally more affordable prices by eliminating them as risky sources of cheaper parallel imports back into premium markets”). Such an outcome would disserve consumers—and especially students—in developing nations and would hardly advance the “American foreign policy goals” of supporting education and eco­ nomic development in such countries. Quality Brief 25–26. Cite as: 568 U. S. (2013) 33 GINSBURG, J., dissenting 8–184.34 to 8–184.35; 2 Goldstein at 7:141; 4 Patry § 13:44, 13:44.10. Rather than adopting the very international-exhaustion rule the United States has consistently resisted in international-trade negotiations, I would adhere to the national-exhaustion framework set by the Copyright Act’s text and history. Under that regime, codified in Kirtsaeng’s unauthorized importation of the foreign-made textbooks involved in this case infringed Wiley’s copyrights. I would therefore affirm the Second Circuit’s judgment

Justice Thomas

second_dissenting

Mlb v. Slj

https://www.courtlistener.com/opinion/118071/mlb-v-slj/

https://www.courtlistener.com/api/rest/v3/clusters/118071/

1996-010

Today the majority holds that the Fourteenth Amendment requires Mississippi to afford petitioner a free transcript because her civil case involves a "fundamental" right. The majority seeks to limit the reach of its holding to the type of case we confront here, one involving the termination of parental rights. I do not think, however, that the new-found constitutional right to free transcripts in civil appeals can be *130 effectively restricted to this case. The inevitable consequence will be greater demands on the States to provide free assistance to would-be appellants in all manner of civil cases involving interests that cannot, based on the test established by the majority, be distinguished from the admittedly important interest at issue here. The cases on which the majority relies, primarily cases requiring appellate assistance for indigent criminal defendants, were questionable when decided, and have, in my view, been undermined since. Even accepting those cases, however, I am of the view that the majority takes them too far. I therefore dissent. I Petitioner requests relief under both the Due Process and Equal Protection Clauses, though she does not specify how either Clause affords it. The majority accedes to petitioner's request. But, carrying forward the ambiguity in the cases on which it relies, the majority does not specify the source of the relief it grants. Those decisions are said to "reflect both equal protection and due process concerns." Ante, at 120. And, while we are told that "cases of this order `cannot be resolved by resort to easy slogans or pigeonhole analysis,' " ibid. (quoting Bearden v. Georgia, 461 U.S. 660, 666 (1983)), the majority nonetheless acknowledges that "`[m]ost decisions in this area . . . res[t] on an equal protection framework,' " ante, at 120 (quoting Bearden, supra, at 665). It then purports to "place this case within the framework established by our past decisions in this area." Ante, at 120. It is not clear to me whether the majority disavows any due process support for its holding. (Despite the murky disclaimer, the majority discusses numerous cases that squarely relied on due process considerations.) I therefore analyze petitioner's claim under both the Due Process and Equal Protection Clauses. If neither Clause affords petitioner the right to a free, civil-appeal transcript, I assume that no amalgam of the two does. *131 A We have indicated on several occasions in this century that the interest of parents in maintaining their relationships with their children is "an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Assuming that petitioner's interest may not be impinged without due process of law, I do not think that the Due Process Clause requires the result the majority reaches. Petitioner's largest obstacle to a due process appeal gratis is our oft-affirmed view that due process does not oblige States to provide for any appeal, even from a criminal conviction. See, e. g., Griffin v. Illinois, 351 U.S. 12, 18 (1956) (plurality opinion) (noting that "a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all" (citation omitted)); McKane v. Durston, 153 U.S. 684, 687 (1894) ("A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review. A citation of authorities upon the point is unnecessary"). To be sure, we have indicated, beginning with Griffin v. Illinois, that where an appeal is provided, States may be prohibited from erecting barriers to those unable to pay. As I described last Term in my concurring opinion in Lewis v. Casey, 518 U.S. 343, 368373 (1996), however, I believe that these cases are best understood as grounded in equal protection analysis, and thus make no inroads on our longstanding rule that States that accord due process in a hearing-level tribunal need not provide further review. The majority reaffirms that due process does not require an appeal. Ante, at 110, 120. Indeed, as I noted above, it *132 is not clear that the majority relies on the Due Process Clause at all. The majority does discuss, however, one case in which the Court stated its holding in terms of due process: Boddie v. Connecticut, 401 U.S. 371 (1971). In Boddie, the Court held violative of due process a Connecticut statute that exacted fees averaging $60 from persons seeking marital dissolution. Citing the importance of the interest in ending a marriage, and the State's monopoly over the mechanisms to accomplish it, we explained that, "at a minimum" and "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Id., at 377. Boddie has little to do with this case. It, "of course, was not concerned with post-hearing review." Ortwein v. Schwab, 410 U.S. 656, 659 (1973). Rather, the concern in Boddie was that indigent persons were deprived of "fundamental rights" with no hearing whatsoever. Petitioner, in contrast, received not merely a hearing, but in fact enjoyed procedural protections above and beyond what our parental termination cases have required. She received both notice and a hearing before a neutral, legally trained decisionmaker. She was represented by counsel—even though due process does not in every case require the appointment of counsel. See Lassiter , supra, at 24. Through her attorney, petitioner was able to confront the evidence and witnesses against her. And, in accordance with Santosky v. Kramer, 455 U.S. 745, 769 (1982), the Chancery Court was required to find that petitioner's parental unfitness was proved by clear and convincing evidence. Indeed, petitioner points to no hearinglevel process to which she was entitled that she did not receive. Given the many procedural protections afforded petitioner, I have little difficulty concluding that "due process has . . . been accorded in the tribunal of first instance." Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U.S. 74, 80 *133 (1930). Due process has never compelled an appeal where, as here, its rigors are satisfied by an adequate hearing. Those cases in which the Court has required States to alleviate financial obstacles to process beyond a hearing—though sometimes couched in due process terms—have been based on the equal protection proposition that if the State chooses to provide for appellate review, it "`can no more discriminate on account of poverty than on account of religion, race, or color.' " Lewis v. Casey, supra, at 371 (Thomas, J., concurring) (quoting Griffin v. Illinois, supra, at 17 (plurality opinion)) (footnote omitted). There seems, then, no place in the Due Process Clause—certainly as an original matter, and even as construed by this Court—for the constitutional "right" crafted by the majority today. I turn now to the other possible source: The Equal Protection Clause. B As I stated last Term in Lewis v. Casey, I do not think that the equal protection theory underlying the Griffin line of cases remains viable. See 518 U.S., at 373-378. There, I expressed serious reservations as to the continuing vitality of Bounds v. Smith, 430 U.S. 817 (1977) (requiring prison authorities to provide prisoners with adequate law libraries or legal assistance). As it did in Bounds, the Court today not only adopts the equal protection theory of Griffin v. Illinois —which was dubious ab initio and which has been undermined since—but extends it. Thus, much of what I said in Lewis v. Casey bears repeating here. In Griffin, the State of Illinois required all criminal appellants whose claims on appeal required review of a trial transcript to obtain it themselves. The plurality thought that this "discriminate[d] against some convicted defendants on account of their poverty," 351 U.S., at 18 (plurality opinion). Justice Harlan, in dissent, perceived a troubling shift in this Court's equal protection jurisprudence. The Court, he noted, did not "dispute either the necessity for a bill of exceptions *134 or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party." Id., at 35. But, because requiring each would-be appellant to bear the costs of appeal hit the poor harder, the majority divined "an invidious classification between the `rich' and the `poor.' " Ibid. Disputing this early manifestation of the "disparate impact" theory of equal protection, Justice Harlan argued: "[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against `indigents' by name would be unconstitutional." Ibid. Justice Harlan offered the example of a state university that conditions an education on the payment of tuition. If charging tuition did not create a discriminatory classification, then, Justice Harlan wondered, how did any other reasonable exaction by a State for a service it provides? "The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences." Ibid. (emphasis deleted). The issue in Griffin was not whether Illinois had made a reasonable classification, but whether the State acted reasonably in failing to remove disabilities that existed wholly independently of state action. To Justice Harlan this was not an inquiry typically posed under the Equal Protection Clause. In Douglas v. California, 372 U.S. 353 (1963), Justice Harlan again confronted what Justice Clark termed the Court's "fetish for indigency," id., at 359 (dissenting opinion). Regarding a law limiting the appointment of appellate counsel for indigents, Justice Harlan pointed out that "[l]aws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States `an affirmative duty to lift the handicaps *135 flowing from differences in economic circumstances.' " Id., at 362 (dissenting opinion) (footnote omitted). Justice Harlan's views were accepted by the Court in Washington v. Davis, 426 U.S. 229 (1976), in which "[w]e rejected a disparate impact theory of the Equal Protection Clause altogether." Lewis v. Casey, supra, at 375 (concurring opinion). We spurned the claim that "a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another." 426 U.S., at 242. Absent proof of discriminatory purpose, official action did not violate the Fourteenth Amendment "solely because it has a racially disparate impact." Id., at 239 (emphasis in original). Hearkening back to Justice Harlan's dissents in Griffin and Douglas, we recognized that "[a] rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U.S., at 248 (footnote omitted). The lesson of Davis is that the Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to "guarante[e] equal laws, not equal results." Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273 (1979). Since Davis, we have regularly required more of an equal protection claimant than a showing that state action has a *136 harsher effect on him or her than on others. See, e. g., Harris v. McRae, 448 U.S. 297, 324, n. 26 (1980) ("The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group" (internal quotation marks and citations omitted)); see also Lewis v. Casey, 518 U. S., at 375 (concurring opinion) (citing cases). Our frequent pronouncements that the Fourteenth Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race, Washington v. Davis, supra; members of one sex, Personnel Administrator v. Feeney, supra; and poor persons seeking to exercise protected rights, Harris v. McRae, supra; Maher v. Roe, 432 U.S. 464, 470-471 (1977). The majority attempts to avoid what I regard as the irresistible force of the Davis line of cases, but I am unconvinced by the effort. The majority states that persons in cases like those cited above "sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action." Ante, at 125. Petitioner, in apparent contrast, "is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication." Ibid. She, "[l]ike a defendant resisting criminal conviction, . . . seeks to be spared from the State's devastatingly adverse action." Ibid. But, also like a defendant resisting criminal conviction, petitioner is not constitutionally entitled to post-trial process. See ante, at 110, 120. She defended against the "destruction of her family bonds" in the Chancery Court hearing at which she was accorded all the process this Court has required of the States in parental termination cases. She now desires "state aid to subsidize [her] privately initiated" *137 appeal—an appeal that neither petitioner nor the majority claims Mississippi is required to provide—to overturn the determination that resulted from that hearing. I see no principled difference between a facially neutral rule that serves in some cases to prevent persons from availing themselves of state employment, or a state-funded education, or a state-funded abortion—each of which the State may, but is not required to, provide—and a facially neutral rule that prevents a person from taking an appeal that is available only because the State chooses to provide it. Nor does Williams v. Illinois, 399 U.S. 235 (1970), a case decided six years earlier, operate to limit Washington v. Davis. Williams was yet another manifestation of the "equalizing" notion of equal protection that this Court began to question in Davis. See Williams, supra, at 260 (Harlan, J., concurring in result). To the extent its reasoning survives Davis, I think that Williams is distinguishable. Petitioner Williams was incarcerated beyond the maximum statutory sentence because he was unable to pay the fine imposed as part of his sentence. We found the law that permitted prisoners to avoid extrastatutory imprisonment only by paying their fines to violate the Equal Protection Clause. Even though it was "`nondiscriminatory on its face,' " the law "work[ed] an invidious discrimination" as to Williams and all other indigents because they could not afford to pay their fines. 399 U.S., at 242. The majority concludes that the sanctions involved in Williams are analogous to "the Mississippi prescription here at issue," in that both do not have merely a disparate impact, "they apply to all indigents and do not reach anyone outside that class." Ante, at 127. Even assuming that Williams' imprisonment gave rise to an equal protection violation, however, M. L. B.'s circumstances are not comparable. M. L. B.'s parental rights were terminated—the analog to Williams' extended imprisonment—because the Chancery Court found, after a hearing, that she was unfit to remain her children's mother, not because she was indigent. Her indigency only prevented her from taking *138 advantage of procedures above and beyond those required by the Constitution—in the same way that indigency frequently prevents persons from availing themselves of a variety of state services.[1] The Griffin line of cases ascribed to—one might say announced—an equalizing notion of the Equal Protection Clause that would, I think, have startled the Fourteenth Amendment's Framers. In those cases, the Court did not find, nor did it seek, any purposeful discrimination on the part of the state defendants. That their statutes had disproportionate effect on poor persons was sufficient for us to find a constitutional violation. In Davis, among other cases, we began to recognize the potential mischief of a disparate impact theory writ large, and endeavored to contain it. In this case, I would continue that enterprise. Mississippi's requirement of prepaid transcripts in civil appeals seeking to contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no classification. The transcript rule reasonably obliges would-be appellants to bear the costs of availing themselves of a service that the State chooses, but is not constitutionally required, to provide.[2] Any adverse *139 impact that the transcript requirement has on any person seeking to appeal arises not out of the State's action, but out of factors entirely unrelated to it. II If this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny. Even were I convinced that the cases on which the majority today relies ought to be retained, I could not agree with the majority's extension of them. The interest at stake in this case differs in several important respects from that at issue in cases such as Griffin. Petitioner's interest in maintaining a relationship with her children is the subject of a civil, not criminal, action. While certain civil suits may tend at the margin toward criminal cases, and criminal cases may likewise drift toward civil suits, the basic distinction between the two finds root in the Constitution and has largely retained its vitality in our jurisprudence. In dissent in Boddie v. Connecticut, Justice Black stated that "in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggesting that the rule there announced to control rights of criminal defendants would control in the quite different field of civil cases." 401 U.S., at 390. The Constitution provides for a series of protections of the unadorned liberty interest at stake in criminal proceedings. These express protections include the Fifth Amendment's guarantee of grand jury indictment, and protection against double jeopardy and selfincrimination; the Sixth Amendment's guarantees of a speedy and public jury trial, of the ability to confront witnesses, and of compulsory process and assistance of counsel; and the Eighth Amendment's protections against excessive bail and fines, and against cruel and unusual punishment. This Court has given content to these textual protections, and has identified others contained in the Due Process Clause. These protections are not available to the typical *140 civil litigant. Even where the interest in a civil suit has been labeled "fundamental," as with the interest in parental termination suits, the protections extended pale by comparison. A party whose parental rights are subject to termination is entitled to appointed counsel, but only in certain circumstances. See Lassiter, 452 U. S., at 31-32. His or her rights cannot be terminated unless the evidence meets a standard higher than the preponderance standard applied in the typical civil suit, but the standard is still lower than that required before a guilty verdict. See Santosky v. Kramer, 455 U. S., at 769-770. That said, it is true enough that civil and criminal cases do not always stand in bold relief to one another. Mayer v. Chicago, 404 U.S. 189 (1971), marks a particularly discomfiting point along the border between the civil and criminal areas. Based on Griffin, the Court determined there that an indigent defendant had a constitutional right to a free transcript in aid of appealing his conviction for violating city ordinances, which resulted in a $500 fine and no imprisonment. In Scott v. Illinois, 440 U.S. 367 (1979), we concluded that an indigent defendant charged with a crime that was not punishable by imprisonment was not entitled to appointed counsel. And yet, in Lassiter, supra, we held that, in some cases, due process required provision of assistance of counsel before the termination of parental rights. The assertion that civil litigants have no right to the free transcripts that all criminal defendants enjoy is difficult to sustain in the face of our holding that some civil litigants are entitled to the assistance of counsel to which some criminal defendants are not. It is at this unsettled (and unsettling) place that the majority lays the foundation of its holding. See ante, at 120-124. The majority's solution to the "anamol[y]" that a misdemeanant receives a free transcript but no trial counsel, while a parental-rights terminee receives (sometimes) trial counsel, but no transcript, works an extension of Mayer. I *141 would answer the conundrum differently: Even if the Griffin line were sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled. Unlike in Scott and Lassiter, the Court gave short shrift in Mayer to the distinction, as old as our Constitution, between crimes punishable by imprisonment and crimes punishable merely by fines. See Lassiter, supra, at 26-27; Scott, supra, at 373. Even though specific text-based constitutional protections have been withheld in cases not involving the prospect of imprisonment, the Court found the difference of no moment in Mayer. The Court reasoned that "[t]he invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed." 404 U.S., at 197. We reap today what we sowed then. If requiring payment for procedures (e. g., appeals) that are not themselves required is invidious discrimination no matter what sentence results, it is difficult to imagine why it is not invidious discrimination no matter what results and no matter whether the procedures involve a criminal or civil case. See supra, at 135. To me this points up the difficulty underlying the entire Griffin line. Taking the Griffin line as a given, however, and in the absence of any obvious limiting principle, I would restrict it to the criminal appeals to which its authors, see Boddie v. Connecticut, 401 U. S., at 389 (Black, J., dissenting), sought to limit it. The distinction between criminal and civil cases—if blurred at the margins—has persisted throughout the law. The distinction that the majority seeks to draw between the case we confront today and the other civil cases that we will surely face tomorrow is far more ephemeral. If all that is required to trigger the right to a free appellate transcript is that the interest at stake appear to us to be as fundamental as the interest of a convicted misdemeanant, several kinds of civil suits involving interests that seem fundamental *142 enough leap to mind. Will the Court, for example, now extend the right to a free transcript to an indigent seeking to appeal the outcome of a paternity suit?[3] To those who wish to appeal custody determinations?[4] How about persons against whom divorce decrees are entered?[5] Civil suits that arise out of challenges to zoning ordinances with an impact on families?[6] Why not foreclosure actions—or at least foreclosure *143 actions seeking to oust persons from their homes of many years?[7] The majority seeks to provide assurances that its holding will not extend beyond parental termination suits. The holdings of Santosky and Lassiter —both of which involved parental termination—have not, we are told, been applied to other areas of law. Ante, at 128. This is not comforting. Both Santosky and Lassiter are cases that determined the requirements of due process (not equal protection) in the parental rights termination area. As the Court has said countless times, the requirements of due process vary considerably with the interest involved and the action to which it is subject. It is little wonder, then, that the specific due process requirements for one sort of action are not readily transferable to others. I have my doubts that today's opinion will be so confined. In the first place, it is not clear whether it is an equal protection or a due process opinion. Moreover, the principle on which it appears to rest hardly seems capable of stemming the tide. Petitioner is permitted a free appellate transcript because the interest that underlies her civil claim compares favorably to the interest of the misdemeanant facing a $500 fine and unknown professional difficulties in Mayer v. Chicago. Under the rule announced today, I do not see how a civil litigant could constitutionally be denied a free transcript in any case that involves an interest that is arguably as important as the interest in Mayer (which would appear to include all the types of cases that I mention above, and perhaps many others).[8] What is more, it must be remembered that Griffin did not merely invent *144 the free transcript right for criminal appellants; it was also the launching pad for the discovery of a host of other rights. See, e. g., Bounds, 430 U. S., at 822 (right to prison law libraries or legal assistance); Douglas, 372 U. S., at 356 (right to free appellate counsel). I fear that the growth of Griffin in the criminal area may be mirrored in the civil area. In brushing aside the distinction between criminal and civil cases—the distinction that has constrained Griffin for 40 years—the Court has eliminated the last meaningful limit on the free-floating right to appellate assistance. From Mayer, an unfortunate outlier in the Griffin line, has sprung the M. L. B. line, and I have no confidence that the majority's assurances that the line starts and ends with this case will hold true. III As the majority points out, many States already provide for in forma pauperis civil appeals, with some making special allowances for parental termination cases. I do not dispute the wisdom or charity of these heretofore voluntary allocations of the various States' scarce resources. I agree that, for many—if not most—parents, the termination of their right to raise their children would be an exaction more dear than any other. It seems perfectly reasonable for States to choose to provide extra constitutional procedures to ensure that any such termination is undertaken with care. I do not agree, however, that a State that has taken the step, not required by the Constitution, of permitting appeals from termination decisions somehow violates the Constitution when it charges reasonable fees of all would-be appellants. I respectfully dissent.

Today the majority holds that the Fourteenth Amendment requires Mississippi to afford petitioner a free transcript because her civil case involves a "fundamental" right. The majority seeks to limit the reach of its holding to the type of case we confront here, one involving the termination of parental rights. I do not think, however, that the new-found constitutional right to free transcripts in civil appeals can be *130 effectively restricted to this case. The inevitable consequence will be greater demands on the States to provide free assistance to would-be appellants in all manner of civil cases involving interests that cannot, based on the test established by the majority, be distinguished from the admittedly important interest at issue here. The cases on which the majority relies, primarily cases requiring appellate assistance for indigent criminal defendants, were questionable when decided, and have, in my view, been undermined since. Even accepting those cases, however, I am of the view that the majority takes them too far. I therefore dissent. I Petitioner requests relief under both the Due Process and Equal Protection Clauses, though she does not specify how either Clause affords it. The majority accedes to petitioner's request. But, carrying forward the ambiguity in the cases on which it relies, the majority does not specify the source of the relief it grants. Those decisions are said to "reflect both equal protection and due process concerns." Ante, at 120. And, while we are told that "cases of this order `cannot be resolved by resort to easy slogans or pigeonhole analysis,' " ), the majority nonetheless acknowledges that "`[m]ost decisions in this area res[t] on an equal protection framework,' " ante, at 120 (quoting ). It then purports to "place this case within the framework established by our past decisions in this area." Ante, at 120. It is not clear to me whether the majority disavows any due process support for its holding. (Despite the murky disclaimer, the majority discusses numerous cases that squarely relied on due process considerations.) I therefore analyze petitioner's claim under both the Due Process and Equal Protection Clauses. If neither Clause affords petitioner the right to a free, civil-appeal transcript, I assume that no amalgam of the two does. *131 A We have indicated on several occasions in this century that the interest of parents in maintaining their relationships with their children is "an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Assuming that petitioner's interest may not be impinged without due process of law, I do not think that the Due Process Clause requires the result the majority reaches. Petitioner's largest obstacle to a due process appeal gratis is our oft-affirmed view that due process does not oblige States to provide for any appeal, even from a criminal conviction. See, e. g., (noting that "a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all" (citation omitted)); (94) ("A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review. A citation of authorities upon the point is unnecessary"). To be sure, we have indicated, beginning with that where an appeal is provided, States may be prohibited from erecting barriers to those unable to pay. As I described last Term in my concurring opinion in 5 U.S. 343, however, I believe that these cases are best understood as grounded in equal protection analysis, and thus make no inroads on our longstanding rule that States that accord due process in a hearing-level tribunal need not provide further review. The majority reaffirms that due process does not require an appeal. Ante, at 110, 120. Indeed, as I noted above, it *132 is not clear that the majority relies on the Due Process Clause at all. The majority does discuss, however, one case in which the Court stated its holding in terms of due process: In Boddie, the Court held violative of due process a statute that exacted fees averaging $60 from persons seeking marital dissolution. Citing the importance of the interest in ending a marriage, and the State's monopoly over the mechanisms to accomplish it, we explained that, "at a minimum" and "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie has little to do with this case. It, "of course, was not concerned with post-hearing review." Rather, the concern in Boddie was that indigent persons were deprived of "fundamental rights" with no hearing whatsoever. Petitioner, in contrast, received not merely a hearing, but in fact enjoyed procedural protections above and beyond what our parental termination cases have required. She received both notice and a hearing before a neutral, legally trained decisionmaker. She was represented by counsel—even though due process does not in every case require the appointment of counsel. See Through her attorney, petitioner was able to confront the evidence and witnesses against her. And, in accordance with the Chancery Court was required to find that petitioner's parental unfitness was proved by clear and convincing evidence. Indeed, petitioner points to no hearinglevel process to which she was entitled that she did not receive. Given the many procedural protections afforded petitioner, I have little difficulty concluding that "due process has been accorded in the tribunal of first instance." Ohio ex rel. Due process has never compelled an appeal where, as here, its rigors are satisfied by an adequate hearing. Those cases in which the Court has required States to alleviate financial obstacles to process beyond a hearing—though sometimes couched in due process terms—have been based on the equal protection proposition that if the State chooses to provide for appellate review, it "`can no more discriminate on account of poverty than on account of religion, race, or color.' " (quoting ) There seems, then, no place in the Due Process Clause—certainly as an original matter, and even as construed by this Court—for the constitutional "right" crafted by the majority today. I turn now to the other possible source: The Equal Protection Clause. B As I stated last Term in I do not think that the equal protection theory underlying the Griffin line of cases remains viable. See 5 U.S., -378. There, I expressed serious reservations as to the continuing vitality of As it did in the Court today not only adopts the equal protection theory of —which was dubious ab initio and which has been undermined since—but extends it. Thus, much of what I said in bears repeating here. In Griffin, the State of required all criminal appellants whose claims on appeal required review of a trial transcript to obtain it themselves. The plurality thought that this "discriminate[d] against some convicted defendants on account of their poverty," 351 U.S., at Justice Harlan, in dissent, perceived a troubling shift in this Court's equal protection jurisprudence. The Court, he noted, did not "dispute either the necessity for a bill of exceptions *134 or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party." But, because requiring each would-be appellant to bear the costs of appeal hit the poor harder, the majority divined "an invidious classification between the `rich' and the `poor.' " Disputing this early manifestation of the "disparate impact" theory of equal protection, Justice Harlan argued: "[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against `indigents' by name would be unconstitutional." Justice Harlan offered the example of a state university that conditions an education on the payment of tuition. If charging tuition did not create a discriminatory classification, then, Justice Harlan wondered, how did any other reasonable exaction by a State for a service it provides? "The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences." The issue in Griffin was not whether had made a reasonable classification, but whether the State acted reasonably in failing to remove disabilities that existed wholly independently of state action. To Justice Harlan this was not an inquiry typically posed under the Equal Protection Clause. In Justice Harlan again confronted what Justice Clark termed the Court's "fetish for indigency," 9 Regarding a law limiting the appointment of appellate counsel for indigents, Justice Harlan pointed out that "[l]aws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States `an affirmative duty to lift the handicaps *135 flowing from differences in economic circumstances.' " Justice Harlan's views were accepted by the Court in in which "[w]e rejected a disparate impact theory of the Equal Protection Clause altogether." We spurned the claim that "a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another." 426 U.S., 2. Absent proof of discriminatory purpose, official action did not violate the Fourteenth Amendment "solely because it has a racially disparate impact." Hearkening back to Justice Harlan's dissents in Griffin and we recognized that "[a] rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U.S., 8 The lesson of is that the Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to "guarante[e] equal laws, not equal results." Personnel Administrator of 3 Since we have regularly required more of an equal protection claimant than a showing that state action has a *136 harsher effect on him or her than on others. See, e. g., ("The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group" (internal quotation marks and citations omitted)); see also 5 U. S., (citing cases). Our frequent pronouncements that the Fourteenth Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race, members of one sex, Personnel Administrator v. and poor persons seeking to exercise protected rights, The majority attempts to avoid what I regard as the irresistible force of the line of cases, but I am unconvinced by the effort. The majority states that persons in cases like those cited above "sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action." Ante, at 125. Petitioner, in apparent contrast, "is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication." She, "[l]ike a defendant resisting criminal conviction, seeks to be spared from the State's devastatingly adverse action." But, also like a defendant resisting criminal conviction, petitioner is not constitutionally entitled to post-trial process. See ante, at 110, 120. She defended against the "destruction of her family bonds" in the Chancery Court hearing at which she was accorded all the process this Court has required of the States in parental termination cases. She now desires "state aid to subsidize [her] privately initiated" *137 appeal—an appeal that neither petitioner nor the majority claims Mississippi is required to provide—to overturn the determination that resulted from that hearing. I see no principled difference between a facially neutral rule that serves in some cases to prevent persons from availing themselves of state employment, or a state-funded education, or a state-funded abortion—each of which the State may, but is not required to, provide—and a facially neutral rule that prevents a person from taking an appeal that is available only because the State chooses to provide it. Nor does v. a case decided six years earlier, operate to limit was yet another manifestation of the "equalizing" notion of equal protection that this Court began to question in See To the extent its reasoning survives I think that is distinguishable. Petitioner was incarcerated beyond the maximum statutory sentence because he was unable to pay the fine imposed as part of his sentence. We found the law that permitted prisoners to avoid extrastatutory imprisonment only by paying their fines to violate the Equal Protection Clause. Even though it was "`nondiscriminatory on its face,' " the law "work[ed] an invidious discrimination" as to and all other indigents because they could not afford to pay their fines. 399 U.S., 2. The majority concludes that the sanctions involved in are analogous to "the Mississippi prescription here at issue," in that both do not have merely a disparate impact, "they apply to all indigents and do not reach anyone outside that class." Ante, at 1. Even assuming that ' imprisonment gave rise to an equal protection violation, however, M. L. B.'s circumstances are not comparable. M. L. B.'s parental rights were terminated—the analog to ' extended imprisonment—because the Chancery Court found, after a hearing, that she was unfit to remain her children's mother, not because she was indigent. Her indigency only prevented her from taking *138 advantage of procedures above and beyond those required by the Constitution—in the same way that indigency frequently prevents persons from availing themselves of a variety of state services.[1] The Griffin line of cases ascribed to—one might say announced—an equalizing notion of the Equal Protection Clause that would, I think, have startled the Fourteenth Amendment's Framers. In those cases, the Court did not find, nor did it seek, any purposeful discrimination on the part of the state defendants. That their statutes had disproportionate effect on poor persons was sufficient for us to find a constitutional violation. In among other cases, we began to recognize the potential mischief of a disparate impact theory writ large, and endeavored to contain it. In this case, I would continue that enterprise. Mississippi's requirement of prepaid transcripts in civil appeals seeking to contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no classification. The transcript rule reasonably obliges would-be appellants to bear the costs of availing themselves of a service that the State chooses, but is not constitutionally required, to provide.[2] Any adverse *139 impact that the transcript requirement has on any person seeking to appeal arises not out of the State's action, but out of factors entirely unrelated to it. II If this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny. Even were I convinced that the cases on which the majority today relies ought to be retained, I could not agree with the majority's extension of them. The interest at stake in this case differs in several important respects from that at issue in cases such as Griffin. Petitioner's interest in maintaining a relationship with her children is the subject of a civil, not criminal, action. While certain civil suits may tend at the margin toward criminal cases, and criminal cases may likewise drift toward civil suits, the basic distinction between the two finds root in the Constitution and has largely retained its vitality in our jurisprudence. In dissent in Justice Black stated that "in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggesting that the rule there announced to control rights of criminal defendants would control in the quite different field of civil cases." The Constitution provides for a series of protections of the unadorned liberty interest at stake in criminal proceedings. These express protections include the Fifth Amendment's guarantee of grand jury indictment, and protection against double jeopardy and selfincrimination; the Sixth Amendment's guarantees of a speedy and public jury trial, of the ability to confront witnesses, and of compulsory process and assistance of counsel; and the Eighth Amendment's protections against excessive bail and fines, and against cruel and unusual punishment. This Court has given content to these textual protections, and has identified others contained in the Due Process Clause. These protections are not available to the typical *140 civil litigant. Even where the interest in a civil suit has been labeled "fundamental," as with the interest in parental termination suits, the protections extended pale by comparison. A party whose parental rights are subject to termination is entitled to appointed counsel, but only in certain circumstances. See -32. His or her rights cannot be terminated unless the evidence meets a standard higher than the preponderance standard applied in the typical civil suit, but the standard is still lower than that required before a guilty verdict. See 455 U. S., at -770. That said, it is true enough that civil and criminal cases do not always stand in bold relief to one another. 404 U.S. 9 marks a particularly discomfiting point along the border between the civil and criminal areas. Based on Griffin, the Court determined there that an indigent defendant had a constitutional right to a free transcript in aid of appealing his conviction for violating city ordinances, which resulted in a $500 fine and no imprisonment. In v. we concluded that an indigent defendant charged with a crime that was not punishable by imprisonment was not entitled to appointed counsel. And yet, in we held that, in some cases, due process required provision of assistance of counsel before the termination of parental rights. The assertion that civil litigants have no right to the free transcripts that all criminal defendants enjoy is difficult to sustain in the face of our holding that some civil litigants are entitled to the assistance of counsel to which some criminal defendants are not. It is at this unsettled (and unsettling) place that the majority lays the foundation of its holding. See ante, at 120-124. The majority's solution to the "anamol[y]" that a misdemeanant receives a free transcript but no trial counsel, while a parental-rights terminee receives (sometimes) trial counsel, but no transcript, works an extension of Mayer. I *141 would answer the conundrum differently: Even if the Griffin line were sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled. Unlike in and the Court gave short shrift in Mayer to the distinction, as old as our Constitution, between crimes punishable by imprisonment and crimes punishable merely by fines. See at 26-; Even though specific text-based constitutional protections have been withheld in cases not involving the prospect of imprisonment, the Court found the difference of no moment in Mayer. The Court reasoned that "[t]he invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed." We reap today what we sowed then. If requiring payment for procedures (e. g., appeals) that are not themselves required is invidious discrimination no matter what sentence results, it is difficult to imagine why it is not invidious discrimination no matter what results and no matter whether the procedures involve a criminal or civil case. See To me this points up the difficulty underlying the entire Griffin line. Taking the Griffin line as a given, however, and in the absence of any obvious limiting principle, I would restrict it to the criminal appeals to which its authors, see sought to limit it. The distinction between criminal and civil cases—if blurred at the margins—has persisted throughout the law. The distinction that the majority seeks to draw between the case we confront today and the other civil cases that we will surely face tomorrow is far more ephemeral. If all that is required to trigger the right to a free appellate transcript is that the interest at stake appear to us to be as fundamental as the interest of a convicted misdemeanant, several kinds of civil suits involving interests that seem fundamental *142 enough leap to mind. Will the Court, for example, now extend the right to a free transcript to an indigent seeking to appeal the outcome of a paternity suit?[3] To those who wish to appeal custody determinations?[4] How about persons against whom divorce decrees are entered?[5] Civil suits that arise out of challenges to zoning ordinances with an impact on families?[6] Why not foreclosure actions—or at least foreclosure *143 actions seeking to oust persons from their homes of many years?[7] The majority seeks to provide assurances that its holding will not extend beyond parental termination suits. The holdings of Santosky and —both of which involved parental termination—have not, we are told, been applied to other areas of law. Ante, at 128. This is not comforting. Both Santosky and are cases that determined the requirements of due process (not equal protection) in the parental rights termination area. As the Court has said countless times, the requirements of due process vary considerably with the interest involved and the action to which it is subject. It is little wonder, then, that the specific due process requirements for one sort of action are not readily transferable to others. I have my doubts that today's opinion will be so confined. In the first place, it is not clear whether it is an equal protection or a due process opinion. Moreover, the principle on which it appears to rest hardly seems capable of stemming the tide. Petitioner is permitted a free appellate transcript because the interest that underlies her civil claim compares favorably to the interest of the misdemeanant facing a $500 fine and unknown professional difficulties in Under the rule announced today, I do not see how a civil litigant could constitutionally be denied a free transcript in any case that involves an interest that is arguably as important as the interest in Mayer (which would appear to include all the types of cases that I mention above, and perhaps many others).[8] What is more, it must be remembered that Griffin did not merely invent *144 the free transcript right for criminal appellants; it was also the launching pad for the discovery of a host of other rights. See, e. g., ; 372 U. S., 6 I fear that the growth of Griffin in the criminal area may be mirrored in the civil area. In brushing aside the distinction between criminal and civil cases—the distinction that has constrained Griffin for 40 years—the Court has eliminated the last meaningful limit on the free-floating right to appellate assistance. From Mayer, an unfortunate outlier in the Griffin line, has sprung the M. L. B. line, and I have no confidence that the majority's assurances that the line starts and ends with this case will hold true. III As the majority points out, many States already provide for in forma pauperis civil appeals, with some making special allowances for parental termination cases. I do not dispute the wisdom or charity of these heretofore voluntary allocations of the various States' scarce resources. I agree that, for many—if not most—parents, the termination of their right to raise their children would be an exaction more dear than any other. It seems perfectly reasonable for States to choose to provide extra constitutional procedures to ensure that any such termination is undertaken with care. I do not agree, however, that a State that has taken the step, not required by the Constitution, of permitting appeals from termination decisions somehow violates the Constitution when it charges reasonable fees of all would-be appellants. I respectfully dissent.

Justice Stevens

majority

Branti v. Finkel

https://www.courtlistener.com/opinion/110232/branti-v-finkel/

https://www.courtlistener.com/api/rest/v3/clusters/110232/

1979-064

The question presented is whether the First and Fourteenth Amendments to the Constitution protect an assistant public defender who is satisfactorily performing his job from discharge solely because of his political beliefs. Respondents, Aaron Finkel and Alan Tabakman, commenced this action in the United States District Court for the Southern District of New York in order to preserve their positions as assistant public defenders in Rockland County, New York.[1] On January 4, 1978, on the basis of a showing that the petitioner public defender was about to discharge them solely because they were Republicans, the District Court entered a temporary restraining order preserving the status quo. After hearing evidence for eight days, the District Court entered detailed findings of fact and permanently enjoined[2] petitioner from terminating or attempting to terminate respondents' employment "upon the sole grounds of *509 their political beliefs."[3] 457 F. Supp. 1284, 1285 (1978). The Court of Appeals affirmed in an unpublished memorandum opinion, judgment order reported at 598 F.2d 609 (CA2 1979) (table). The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his pleasure. The two respondents have served as assistants since their respective appointments in March 1971 and September 1975; they are both Republicans.[4] Petitioner Branti's predecessor, a Republican, was appointed in 1972 by a Republican-dominated County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner, also a Democrat, was appointed to replace the incumbent when his term expired. As soon as petitioner was formally appointed on January 3, 1978, he began executing termination notices for six of the nine assistants then in office. Respondents were among those who were to be terminated. With one possible exception, the nine who were to be appointed *510 or retained were all Democrats and were all selected by Democratic legislators or Democratic town chairmen on a basis that had been determined by the Democratic caucus.[5] The District Court found that Finkel and Tabakman had been selected for termination solely because they were Republicans and thus did not have the necessary Democratic sponsors: "The sole grounds for the attempted removal of plaintiffs were the facts that plaintiffs' political beliefs differed from those of the ruling Democratic majority in the County Legislature and that the Democratic majority had determined that Assistant Public Defender appointments were to be made on political bases." 457 F. Supp., at 1293. The court rejected petitioner's belated attempt to justify the dismissals on nonpolitical grounds. Noting that both Branti and his predecessor had described respondents as "competent attorneys," the District Court expressly found that both had been "satisfactorily performing their duties as Assistant Public Defenders." Id., at 1292. Having concluded that respondents had been discharged solely because of their political beliefs, the District Court held that those discharges would be permissible under this Court's decision in Elrod v. Burns, 427 U.S. 347, only if *511 assistant public defenders are the type of policymaking, confidential employees who may be discharged solely on the basis of their political affiliations. The court concluded that respondents clearly did not fall within that category. Although recognizing that they had broad responsibilities with respect to particular cases that were assigned to them, the court found that respondents had "very limited, if any, responsibility" with respect to the overall operation of the public defender's office. They did not "act as advisors or formulate plans for the implementation of the broad goals of the office" and, although though they made decisions in the context of specific cases, "they do not make decisions about the orientation and operation of the office in which they work." 457 F. Supp., at 1291. The District Court also rejected the argument that the confidential character of respondents' work justified conditioning their employment on political grounds. The court found that they did not occupy any confidential relationship to the policymaking process, and did not have access to confidential documents that influenced policymaking deliberations. Rather, the only confidential information to which they had access was the product of their attorney-client relationship with the office's clients; to the extent that such information was shared with the public defender, it did not relate to the formulation of office policy. In light of these factual findings, the District Court concluded that petitioner could not terminate respondents' employment as assistant public defenders consistent with the First and Fourteenth Amendments. On appeal, a panel of the Second Circuit affirmed, specifically holding that the District Court's findings of fact were adequately supported by the record. That court also expressed "no doubt" that the District Court "was correct in concluding that an assistant public defender was neither a policymaker nor a confidential employee." We granted certiorari, 443 U.S. 904, and now affirm. *512 Petitioner advances two principal arguments for reversal:[6] First, that the holding in Elrod v. Burns is limited to situations in which government employees are coerced into pledging allegiance to a political party that they would not voluntarily support and does not apply to a simple requirement that an employee be sponsored by the party in power; and, second, that, even if party sponsorship is an unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is an acceptable requirement for an assistant public defender. *513 I In Elrod v. Burns the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." 427 U.S., at 351. That holding was supported by two separate opinions. Writing for the plurality, MR. JUSTICE BRENNAN identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system[7] on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff's employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party's candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs.[8] That conclusion, in *514 his opinion, brought the practice within the rule of cases like Board of Education v. Barnette, 319 U.S. 624, condemning the use of governmental power to prescribe what the citizenry must accept as orthodox opinion.[9] Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, MR. JUSTICE BRENNAN also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases like Perry v. Sindermann, 408 U.S. 593. In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated: "For at least a quarter-century, this Court has made clear that even though a person has no `right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government *515 may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which [it] could not command directly.' Speiser v. Randall, 357 U.S. 513, 526. Such interference with constitutional rights is impermissible. ..... "Thus, the respondent's lack of a contractual or tenure `right' to re-employment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the non-renewal of a nontenured public school teacher's one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. Shelton v. Tucker, [364 U.S. 479]; Keyishian v. Board of Regents, [385 U.S. 589]. We reaffirm those holdings here." Id., at 597-598. If the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.[10] Under this line of analysis, unless the government can demonstrate "an overriding *516 interest," 427 U.S., at 368, "of vital importance," id., at 362, requiring that a person's private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment. MR. JUSTICE STEWART'S opinion concurring in the judgment avoided comment on the first branch of MR. JUSTICE BRENNAN'S analysis, but expressly relied on the same passage from Perry v. Sindermann that is quoted above. Petitioner argues that Elrod v. Burns should be read to prohibit only dismissals resulting from an employee's failure to capitulate to political coercion. Thus, he argues that, so long as an employee is not asked to change his political affiliation or to contribute to or work for the party's candidates, he may be dismissed with impunity—even though he would not have been dismissed if he had had the proper political sponsorship and even though the sole reason for dismissing him was to replace him with a person who did have such sponsorship. Such an interpretation would surely emasculate the principles set forth in Elrod. While it would perhaps eliminate the more blatant forms of coercion described in Elrod, it would not eliminate the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one's job.[11] More importantly, petitioner's interpretation would require the Court to repudiate entirely the conclusion of both MR. JUSTICE BRENNAN and MR. JUSTICE STEWART that the First Amendment *517 prohibits the dismissal of a public employee solely because of his private political beliefs. In sum, there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged "solely for the reason that they were not affiliated with or sponsored by the Democratic Party." 427 U.S., at 350. II Both opinions in Elrod recognize that party affiliation may be an acceptable requirement for some types of government employment. Thus, if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency. Id., at 366. In Elrod, it was clear that the duties of the employees—the chief deputy of the process division of the sheriff's office, a process server and another employee in that office, and a bailiff and security guard at the Juvenile Court of Cook County—were not of that character, for they were, as MR. JUSTICE STEWART stated, "nonpolicymaking, nonconfidential" employees. Id., at 375.[12] *518 As MR. JUSTICE BRENNAN noted in Elrod, it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. Id., at 367. Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State's election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information. Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee's governmental responsibilities. It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university's football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. *519 Having thus framed the issue, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State.[13] As we recently observed in commenting on the duties of counsel appointed to represent indigent defendants in federal criminal proceedings: "[T]he primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation." Ferri v. Ackerman, 444 U.S. 193, 204. Thus, whatever policymaking occurs in the public defender's office must relate to the needs of individual clients and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public *520 defender's office to make his tenure dependent on his allegiance to the dominant political party.[14] Accordingly, the entry of an injunction against termination of respondents' employment on purely political grounds was appropriate and the judgment of the Court of Appeals is Affirmed. MR.

The question presented is whether the First and Fourteenth Amendments to the Constitution protect an assistant public defender who is satisfactorily performing his job from discharge solely because of his political beliefs. Respondents, Aaron Finkel and Alan Tabakman, commenced this action in the United States District Court for the Southern District of New York in order to preserve their positions as assistant public defenders in Rockland County, New York.[1] On January 4, on the basis of a showing that the petitioner public defender was about to discharge them solely because they were Republicans, the District Court entered a temporary restraining order preserving the status quo. After hearing evidence for eight days, the District Court entered detailed findings of fact and permanently enjoined[2] petitioner from terminating or attempting to terminate respondents' employment "upon the sole grounds of *509 their political beliefs."[3] The Court of Appeals affirmed in an unpublished memorandum opinion, judgment order reported at The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his pleasure. The two respondents have served as assistants since their respective appointments in March 1971 and September 1975; they are both Republicans.[4] Petitioner Branti's predecessor, a Republican, was appointed in 1972 by a Republican-dominated County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner, also a Democrat, was appointed to replace the incumbent when his term expired. As soon as petitioner was formally appointed on January 3, he began executing termination notices for six of the nine assistants then in office. Respondents were among those who were to be terminated. With one possible exception, the nine who were to be appointed *510 or retained were all Democrats and were all selected by Democratic legislators or Democratic town chairmen on a basis that had been determined by the Democratic caucus.[5] The District Court found that Finkel and Tabakman had been selected for termination solely because they were Republicans and thus did not have the necessary Democratic sponsors: "The sole grounds for the attempted removal of plaintiffs were the facts that plaintiffs' political beliefs differed from those of the ruling Democratic majority in the County Legislature and that the Democratic majority had determined that Assistant Public Defender appointments were to be made on political bases." The court rejected petitioner's belated attempt to justify the dismissals on nonpolitical grounds. Noting that both Branti and his predecessor had described respondents as "competent attorneys," the District Court expressly found that both had been "satisfactorily performing their duties as Assistant Public Defenders." Having concluded that respondents had been discharged solely because of their political beliefs, the District Court held that those discharges would be permissible under this Court's decision in only if *511 assistant public defenders are the type of policymaking, confidential employees who may be discharged solely on the basis of their political affiliations. The court concluded that respondents clearly did not fall within that category. Although recognizing that they had broad responsibilities with respect to particular cases that were assigned to them, the court found that respondents had "very limited, if any, responsibility" with respect to the overall operation of the public defender's office. They did not "act as advisors or formulate plans for the implementation of the broad goals of the office" and, although though they made decisions in the context of specific cases, "they do not make decisions about the orientation and operation of the office in which they work." The District Court also rejected the argument that the confidential character of respondents' work justified conditioning their employment on political grounds. The court found that they did not occupy any confidential relationship to the policymaking process, and did not have access to confidential documents that influenced policymaking deliberations. Rather, the only confidential information to which they had access was the product of their attorney-client relationship with the office's clients; to the extent that such information was shared with the public defender, it did not relate to the formulation of office policy. In light of these factual findings, the District Court concluded that petitioner could not terminate respondents' employment as assistant public defenders consistent with the First and Fourteenth Amendments. On appeal, a panel of the Second Circuit affirmed, specifically holding that the District Court's findings of fact were adequately supported by the record. That court also expressed "no doubt" that the District Court "was correct in concluding that an assistant public defender was neither a policymaker nor a confidential employee." We granted certiorari, and now affirm. *512 Petitioner advances two principal arguments for reversal:[6] First, that the holding in is limited to situations in which government employees are coerced into pledging allegiance to a political party that they would not voluntarily support and does not apply to a simple requirement that an employee be sponsored by the party in power; and, second, that, even if party sponsorship is an unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is an acceptable requirement for an assistant public defender. *513 I In the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." That holding was supported by two separate opinions. Writing for the plurality, MR. JUSTICE BRENNAN identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system[7] on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff's employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party's candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs.[8] That conclusion, in *514 his opinion, brought the practice within the rule of cases like Board of condemning the use of governmental power to prescribe what the citizenry must accept as orthodox opinion.[9] Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, MR. JUSTICE BRENNAN also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases like In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated: "For at least a quarter-century, this Court has made clear that even though a person has no `right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government *515 may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which [it] could not command directly.' Such interference with constitutional rights is impermissible. "Thus, the respondent's lack of a contractual or tenure `right' to re-employment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the non-renewal of a nontenured public school teacher's one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. ]; ]. We reaffirm those holdings here." If the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.[10] Under this line of analysis, unless the government can demonstrate "an overriding *516 interest," "of vital importance," requiring that a person's private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment. MR. JUSTICE STEWART'S opinion concurring in the judgment avoided comment on the first branch of MR. JUSTICE BRENNAN'S analysis, but expressly relied on the same passage from that is quoted above. Petitioner argues that should be read to prohibit only dismissals resulting from an employee's failure to capitulate to political coercion. Thus, he argues that, so long as an employee is not asked to change his political affiliation or to contribute to or work for the party's candidates, he may be dismissed with impunity—even though he would not have been dismissed if he had had the proper political sponsorship and even though the sole reason for dismissing him was to replace him with a person who did have such sponsorship. Such an interpretation would surely emasculate the principles set forth in Elrod. While it would perhaps eliminate the more blatant forms of coercion described in Elrod, it would not eliminate the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one's job.[11] More importantly, petitioner's interpretation would require the Court to repudiate entirely the conclusion of both MR. JUSTICE BRENNAN and MR. JUSTICE STEWART that the First Amendment *517 prohibits the dismissal of a public employee solely because of his private political beliefs. In sum, there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged "solely for the reason that they were not affiliated with or sponsored by the Democratic Party." II Both opinions in Elrod recognize that party affiliation may be an acceptable requirement for some types of government employment. Thus, if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency. In Elrod, it was clear that the duties of the employees—the chief deputy of the process division of the sheriff's office, a process server and another employee in that office, and a bailiff and security guard at the Juvenile Court of Cook County—were not of that character, for they were, as MR. JUSTICE STEWART stated, "nonpolicymaking, nonconfidential" employees.[12] *518 As MR. JUSTICE BRENNAN noted in Elrod, it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State's election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information. Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee's governmental responsibilities. It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university's football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. *519 Having thus framed the issue, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State.[13] As we recently observed in commenting on the duties of counsel appointed to represent indigent defendants in federal criminal proceedings: "[T]he primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation." Thus, whatever policymaking occurs in the public defender's office must relate to the needs of individual clients and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public *520 defender's office to make his tenure dependent on his allegiance to the dominant political party.[14] Accordingly, the entry of an injunction against termination of respondents' employment on purely political grounds was appropriate and the judgment of the Court of Appeals is Affirmed. MR.

Justice Stevens

majority

Howlett v. Rose

https://www.courtlistener.com/opinion/112456/howlett-v-rose/

https://www.courtlistener.com/api/rest/v3/clusters/112456/

1989-106

Section 1 of the Civil Rights Act of 1871, Rev. Stat. § 1979, now codified as 42 U.S. C. § 1983, creates a remedy for violations of federal rights committed by persons acting under color of state law.[1] State courts as well as federal courts have jurisdiction over § 1983 cases. The question in *359 this case is whether a state-law defense of "sovereign immunity" is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum. I Petitioner, a former high school student, filed a complaint in the Circuit Court for Pinellas County, Florida, naming the School Board of Pinellas County and three school officials as defendants. He alleged that an assistant principal made an illegal search of his car while it was parked on school premises and that he was wrongfully suspended from regular classes for five days. Contending that the search and subsequent suspension violated rights under the Fourth and Fourteenth Amendments of the Federal Constitution and under similar provisions of the State Constitution, he prayed for damages and an order expunging any reference to the suspension from the school records. Defendants filed a motion to dismiss on various grounds, including failure to exhaust state administrative remedies.[2] The school board also contended that the court was without jurisdiction to hear the federal claims — but not the state claims — because the Florida waiver-of-sovereign-immunity statute did not extend to claims based on § 1983. App. 13-14. The Circuit Court dismissed the complaint with prejudice, citing a state case requiring state-law challenges to be first presented to the District Court of Appeal and the Florida Supreme Court decision in Hill v. Department of Corrections, 513 So. 2d 129 (1987). App. 19. The District Court of Appeal for the Second District affirmed the dismissal of petitioner's § 1983 claim against the *360 school board.[3] It held that the availability of sovereign immunity in a § 1983 action brought in state court is a matter of state law, and that Florida's statutory waiver of sovereign immunity did not apply to § 1983 cases. The court rejected the argument that whether a State has maintained its sovereign immunity from a § 1983 suit in its state courts is a question of federal law. It wrote: "[W]hen a section 1983 action is brought in state court, the sole question to be decided on the basis of state law is whether the state has waived its common law sovereign immunity to the extent necessary to allow a section 1983 action in state court. Hill holds that Florida has not so waived its sovereign immunity. We therefore do not reach appellant's second issue in this case, i. e., whether under federal law a Florida school board is immune from a section 1983 law. There is no question under Florida law that agencies of the state, including school boards and municipalities, are the beneficiaries of sovereign immunity." 537 So. 2d 706, 708 (1989) (emphasis in original). The Court of Appeal acknowledged our holding in Martinez v. California, 444 U.S. 277 (1980), that a State cannot immunize an official from liability for injuries compensable under federal law. It held, however, that under Hill a State's invocation of a "state common law immunity from the use of its courts for suits against the state in those state courts" raised "purely a question of state law." 537 So. 2d, at 708. The Florida Supreme Court denied review. 545 So. 2d 1367 (1987). In view of the importance of the question decided by the Court of Appeal, we granted certiorari. 493 U.S. 963 (1989). *361 II The question in this case stems from the Florida Supreme Court's decision in the Hill case. In that case, the plaintiff sought damages for common-law negligence and false imprisonment and violations of his constitutional rights under § 1983 from the Florida Department of Corrections for the conduct of one of its probation supervisors. Hill argued that the department was a "person" under § 1983, that it was responsible for the actions of its supervisor, and that it was subject to suit in the Circuit Court pursuant to the Florida waiver of sovereign immunity. Fla. Stat. § 768.28 (1989).[4] That statute provides that the State and its subdivisions, including municipalities and school boards, § 768.28(2), are subject to suit in circuit court for tort claims "in the same manner and to the same extent as a private individual under like circumstances," § 768.28(5).[5] Although the terms of the waiver *362 could be read narrowly to restrict liability to claims against the State in its proprietary capacity, the Florida courts have rejected that interpretation.[6] In 16 cases arising under Florida statutory and common law, the State Supreme Court has held that the State may be sued in respondent superior for the violation of nondiscretionary duties in the exercise of governmental authority. The Florida courts thus have entertained suits against state agencies for the violation of nondiscretionary duties committed in the performance of various governmental activities, including the roadside stop and arrest of an individual driving with an expired inspection sticker,[7] the negligent maintenance by city employees of a *363 storm sewer system,[8] the failure of a state caseworker to detect and prevent child abuse,[9] the negligent maintenance of county swimming pools and failure to warn or correct known dangerous conditions,[10] and the failure to protect a prison inmate from other inmates known to be dangerous.[11] Hill argued *364 that just as the State could be joined in an action for the violation of established state common-law or statutory duties, it was also subject to suit for violations of its nondiscretionary duty not to violate the Constitution. See Owen v. City of Independence, 445 U.S. 622, 649-650 (1980). The trial court dismissed Hill's § 1983 claim but entered judgment on the jury's verdict in his favor on the common-law claims. On appeal, the District Court of Appeal affirmed the dismissal of the § 1983 claim and reversed the judgment on the common-law claim. It also certified to the Florida Supreme Court the question whether Florida's statutory waiver of sovereign immunity permitted suits against the State and its agencies under § 1983. Department of Corrections v. Hill, 490 So. 2d 118 (1986). The State Supreme Court answered that question in the negative. Hill v. Department of Corrections, 513 So. 2d 129 (1987), cert. denied, 484 U.S. 1064 (1988). Without citing any of its own sovereign immunity cases and relying solely on analogy to the Eleventh Amendment and decisions of the courts of other States, the State Supreme Court held that the Florida statute conferred a blanket immunity on governmental entities from federal civil rights actions under § 1983. 513 So. 2d, at 133. It stated: "While Florida is at liberty to waive its immunity from section 1983 actions, it has not done so. The recovery ceilings in section 768.28 were intended to waive sovereign immunity for state tort actions, not federal civil rights actions commenced under section 1983." Ibid. The court thus affirmed the dismissal of the § 1983 claim but reversed the Court of Appeal's judgment on *365 the common-law claim and allowed the judgment for Hill on that claim to stand. On its facts, the disposition of the Hill case would appear to be unexceptional. The defendant in Hill was a state agency protected from suit in a federal court by the Eleventh Amendment. See Quern v. Jordan, 440 U.S. 332, 341 (1979) (§ 1983 does not "override the traditional sovereign immunity of the States").[12] As we held last Term in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), an entity with Eleventh Amendment immunity is not a "person" within the meaning of § 1983. The anomaly identified by the State Supreme Court, and by the various state courts which it cited,[13] that a State might be forced to entertain in its own courts suits from which it was immune in federal court, is thus fully met by our decision in Will. Will establishes that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court. The language and reasoning of the State Supreme Court, if not its precise holding, however, went further. That further step was completed by the District Court of Appeal in this case. As that court construed the law, Florida has extended *366 absolute immunity from suit not only to the State and its arms but also to municipalities, counties, and school districts that might otherwise be subject to suit under § 1983 in federal court. That holding raises the concern that the state court may be evading federal law and discriminating against federal causes of action. The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is itself a federal question which we review de novo. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988); James v. Kentucky, 466 U.S. 341, 348-349 (1984); Hathorn v. Lovorn, 457 U.S. 255, 263 (1982); Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958); Rogers v. Alabama, 192 U.S. 226, 230-231 (1904); Hill, The Inadequate State Ground, 65 Colum. L. Rev. 943, 954-957 (1965). Whether the constitutional rights asserted by petitioner were " `given due recognition by the [Court of Appeal] is a question as to which the [petitioner is] entitled to invoke our judgment, and this [he has] done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support.' " Staub v. City of Baxley, 355 U.S. 313, 318-319 (1958) (quoting Ward v. Love County Board of Comm'rs, 253 U.S. 17, 22 (1920)).[14] *367 III Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws "the supreme Law of the Land," and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. "The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. . . . The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent." Claflin v. Houseman, 93 U.S. 130, 136-137 (1876); see Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 222 (1916) ("[T]he governments and courts of both the Nation and the several States [are not] strange or foreign to each other in the broad sense of that word, but [are] all courts of a common country, all within the orbit of their lawful authority being charged with the duty to safeguard and enforce the right of every citizen without reference to the *368 particular exercise of governmental power from which the right may have arisen, if only the authority to enforce such right comes generally within the scope of the jurisdiction conferred by the government creating them"); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489 (1954) ("The law which governs daily living in the United States is a single system of law"); see also Tafflin v. Levitt, 493 U.S. 455, 469 (1990) (SCALIA, J., concurring).[15] As Alexander Hamilton expressed the principle in a classic passage: "[I]n every case in which they were not expressly excluded by the future acts of the national legislature, [state courts] will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. *369 Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited." The Federalist No. 82, p. 132 (E. Bourne ed. 1947) (emphasis added). Three corollaries follow from the proposition that "federal" law is part of the "Law of the Land" in the State: 1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of "valid excuse." Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377, 387-388 (1929) (Holmes, J.).[16] "The existence *370 of the jurisdiction creates an implication of duty to exercise it." Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1, 58 (1912); see Testa v. Katt, 330 U.S. 386 (1947); Missouri ex rel. St. Louis, B. & M. R. Co. v. Taylor, 266 U.S. 200, 208 (1924); Robb v. Connolly, 111 U.S. 624, 637 (1884).[17] *371 2. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source. "The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of [the State] as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State." Mondou, 223 U. S., at 57; see Miles v. Illinois Central R. Co., 315 U.S. 698, 703-704 *372 (1942) ("By virtue of the Constitution, the courts of the several states must remain open to such litigants on the same basis that they are open to litigants with causes of action springing from a different source"); McKnett v. St. Louis & San Francisco R. Co., 292 U.S. 230, 233-234 (1934); Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916); cf. FERC v. Mississippi, 456 U.S. 742, 776, n. 1 (1982) (opinion of O'CONNOR, J.) (State may not discriminate against federal causes of action). 3. When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1 (1950); Georgia Rail Road & Banking Co. v. Musgrove, 335 U.S. 900 (1949) (per curiam); Herb v. Pitcairn, 324 U.S. 117 (1945); Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377 (1929). The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, "bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them." Hart, 54 Colum. L. Rev., at 508; see also Southland Corp. v. Keating, 465 U.S. 1, 33 (1984) (O'CONNOR, J., dissenting); FERC v. Mississippi, 456 U. S., at 774 (opinion of Powell, J.). The States thus have great latitude to establish the structure and jurisdiction of their own courts. See Herb, supra; Bombolis, supra; Missouri v. Lewis, 101 U.S. 22, 30-31 (1880). In addition, States may apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law. See Felder v. Casey, 487 U.S. 131 (1988); James v. Kentucky, 466 U. S., at 348. These principles are fundamental to a system of federalism in which the state courts share responsibility for the application *373 and enforcement of federal law. In Mondou, for example, we held that rights under the Federal Employers' Liability Act (FELA) "may be enforced, as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion." 223 U.S., at 59. The Connecticut courts had declined cognizance of FELA actions because the policy of the federal Act was "not in accord with the policy of the State," and it was "inconvenient and confusing" to apply federal law. Id., at 55-56. We noted, as a matter of some significance, that Congress had not attempted "to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure," id., at 56, and found from the fact that the state court was a court of general jurisdiction with cognizance over wrongful-death actions that the court's jurisdiction was "appropriate to the occasion," id., at 57. "The existence of the jurisdiction creat[ed] an implication of duty to exercise it," id., at 58, which could not be overcome by disagreement with the policy of the federal Act, id., at 57. In McKnett, the state court refused to exercise jurisdiction over a FELA cause of action against a foreign corporation for an injury suffered in another State. We held "[w]hile Congress has not attempted to compel states to provide courts for the enforcement of the Federal Employers' Liability Act, the Federal Constitution prohibits state courts of general jurisdiction from refusing to do so solely because the suit is brought under a federal law." 292 U.S., at 233-234 (citation omitted). Because the state court had "general jurisdiction of the class of actions to which that here brought belongs, in cases between litigants situated like those in the case at bar," id., at 232, the refusal to hear the FELA action constituted discrimination against rights arising under federal laws, id., at 234, in violation of the Supremacy Clause. We unanimously reaffirmed these principles in Testa v. Katt. We held that the Rhode Island courts could not decline jurisdiction over treble damages claims under the federal *374 Emergency Price Control Act when their jurisdiction was otherwise "adequate and appropriate under established local law." 330 U.S., at 394. The Rhode Island court had distinguished our decisions in McKnett and Mondou on the grounds that the federal Act was a "penal statute," which would not have been enforceable under the Full Faith and Credit Clause if passed by another State. We rejected that argument. We observed that the Rhode Island court enforced the "same type of claim" arising under state law and claims for double damages under federal law. 330 U.S., at 394. We therefore concluded that the court had "jurisdiction adequate and appropriate under established local law to adjudicate this action." Ibid.[18] The court could not decline to exercise this jurisdiction to enforce federal law by labeling it "penal." The policy of the federal Act was to be considered "the prevailing policy in every state" which the state court could not refuse to enforce " `because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.' " Id., at 393 (quoting Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S., at 222). On only three occasions have we found a valid excuse for a state court's refusal to entertain a federal cause of action. Each of them involved a neutral rule of judicial administration. In Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377 (1929), the state statute permitted discretionary dismissal of both federal and state claims where neither the plaintiff nor the defendant was a resident of the forum State.[19] In Herb, the City Court denied jurisdiction over a *375 FELA action on the grounds that the cause of action arose outside its territorial jurisdiction. Although the state court was not free to dismiss the federal claim "because it is a federal one," we found no evidence that the state courts "construed the state jurisdiction and venue laws in a discriminatory fashion." 324 U.S., at 123. Finally, in Mayfield, we held that a state court could apply the doctrine of forum non conveniens to bar adjudication of a FELA case if the State "enforces its policy impartially so as not to involve a discrimination against Employers' Liability Act suits." 340 U.S., at 4 (citation omitted). IV The parties disagree as to the proper characterization of the District Court of Appeal's decision. Petitioner argues that the court adopted a substantive rule of decision that state agencies are not subject to liability under § 1983. Respondents, stressing the court's language that it had not "opened its own courts for federal actions against the state," 537 So. 2d, at 708, argue that the case simply involves the court's refusal to take cognizance of § 1983 actions against state defendants. We conclude that whether the question is framed in pre-emption terms, as petitioner would have it, or in the obligation to assume jurisdiction over a "federal" cause of action, as respondents would have it, the Florida court's refusal to entertain one discrete category of § 1983 claims, when the court entertains similar state-law actions against state defendants, violates the Supremacy Clause. If the District Court of Appeal meant to hold that governmental entities subject to § 1983 liability enjoy an immunity over and above those already provided in § 1983, that holding directly violates federal law. The elements of, and the defenses to, a federal cause of action are defined by federal law. See, e. g., Monessen Southwestern R. Co. v. Morgan, 486 *376 U. S. 330, 335 (1988); Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44, 46-47 (1931). A State may not, by statute or common law, create a cause of action under § 1983 against an entity whom Congress has not subjected to liability. Moor v. County of Alameda, 411 U.S. 693, 698-710 (1973). Since this Court has construed the word "person" in § 1983 to exclude States, neither a federal court nor a state court may entertain a § 1983 action against such a defendant. Conversely, since the Court has held that municipal corporations and similar governmental entities are "persons," see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663 (1978); cf. Will, 491 U. S., at 69, n. 9; Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274, 280-281 (1977), a state court entertaining a § 1983 action must adhere to that interpretation. "Municipal defenses — including an assertion of sovereign immunity — to a federal right of action are, of course, controlled by federal law." Owen v. City of Independence, 445 U. S., at 647, n. 30. "By including municipalities within the class of `persons' subject to liability for violations of the Federal Constitution and laws, Congress — the supreme sovereign on matters of federal law — abolished whatever vestige of the State's sovereign immunity the municipality possessed." Id., at 647-648 (footnote omitted). In Martinez v. California, 444 U.S. 277 (1980), we unanimously concluded that a California statute that purported to immunize public entities and public employees from any liability for parole release decisions was pre-empted by § 1983 "even though the federal cause of action [was] being asserted in the state courts." Id., at 284. We explained: " `Conduct by persons acting under color of state law which is wrongful under 42 U.S. C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction *377 may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.' Hampton v. Chicago, 484 F.2d 602, 607 (CA7 1973), cert. denied, 415 U.S. 917." Id., at 284, n. 8. In Felder v. Casey, we followed Martinez and held that a Wisconsin notice-of-claim statute that effectively shortened the statute of limitations and imposed an exhaustion requirement on claims against public agencies and employees was pre-empted insofar as it was applied to § 1983 actions. After observing that the lower federal courts, with one exception, had determined that notice-of-claim statutes were inapplicable to § 1983 actions brought in federal courts, we stated that such a consensus also demonstrated that "enforcement of the notice-of-claim statute in § 1983 actions brought in state court. . . interfer[ed] with and frustrat[ed] the substantive right Congress created." 487 U.S., at 151. We concluded: "The decision to subject state subdivisions to liability for violations of federal rights . . . was a choice that Congress, not the Wisconsin Legislature, made, and it is a decision that the State has no authority to override." Id., at 143. While the Florida Supreme Court's actual decision in Hill is consistent with the foregoing reasoning, the Court of Appeal's extension of Hill to persons subject by § 1983 to liability is flatly inconsistent with that reasoning and the holdings in both Martinez and Felder. Federal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations. See St. Louis v. Praprotnik, 485 U.S. 112, 121-122 (1988); Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). Florida law, as interpreted by the District Court of Appeal, would make all such defendants absolutely immune from liability under the federal statute. To the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional *378 violations, that disagreement cannot override the dictates of federal law. "Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action." Wilson v. Garcia, 471 U.S. 261, 269 (1985). If, on the other hand, the District Court of Appeal meant that § 1983 claims are excluded from the category of tort claims that the Circuit Court could hear against a school board, its holding was no less violative of federal law. Cf. Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 201 (1915). This case does not present the questions whether Congress can require the States to create a forum with the capacity to enforce federal statutory rights or to authorize service of process on parties who would not otherwise be subject to the court's jurisdiction.[20] The State of Florida has constituted the Circuit Court for Pinellas County as a court of general jurisdiction.[21] It exercises jurisdiction over tort claims by private citizens against state entities (including school boards), of the size and type of petitioner's claim here, and it can enter judgment against them. That court also exercises jurisdiction over § 1983 actions against individual officers[22] and is fully competent to provide the remedies the federal *379 statute requires. Cf. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238 (1969). Petitioner has complied with all the state-law procedures for invoking the jurisdiction of that court. The mere facts, as argued by respondents' amici, that state common law and statutory law do not make unlawful the precise conduct that § 1983 addresses and that § 1983 actions "are more likely to be frivolous than are other suits," Brief for Washington Legal Foundation et al. as Amici Curiae 17, clearly cannot provide sufficient justification for the State's refusal to entertain such actions. These reasons have never been asserted by the State and are not asserted by the school board. More importantly, they are not the kind of neutral policy that could be a "valid excuse" for the state court's refusal to entertain federal actions. To the extent that the Florida rule is based upon the judgment that parties who are otherwise subject to the jurisdiction of the court should not be held liable for activity that would not subject them to liability under state law, we understand that to be only another way of saying that the court disagrees with the content of federal law. Sovereign immunity in Florida turns on the nature of the claim — whether the duty allegedly breached is discretionary — not on the subject matter of the dispute. There is no question that the Circuit Court, which entertains state common-law and statutory claims against state entities in a variety of their capacities, ranging from law enforcement to schooling to the protection of individuals using parking lots,[23] has jurisdiction over the subject of this suit. That court cannot reject petitioner's § 1983 claim *380 because it has chosen, for substantive policy reasons, not to adjudicate other claims which might also render the school board liable. The federal law is law in the State as much as laws passed by the state legislature. A "state court cannot `refuse to enforce the right arising from the law of the United States because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.' " Testa, 330 U. S., at 393 (quoting Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S., at 222). The argument by amici that suits predicated on federal law are more likely to be frivolous and have less of an entitlement to the State's limited judicial resources warrants little response. A State may adopt neutral procedural rules to discourage frivolous litigation of all kinds, as long as those rules are not pre-empted by a valid federal law. A State may not, however, relieve congestion in its courts by declaring a whole category of federal claims to be frivolous. Until it has been proved that the claim has no merit, that judgment is not up to the States to make. Respondents have offered no neutral or valid excuse for the Circuit Court's refusal to hear § 1983 actions against state entities. The Circuit Court would have had jurisdiction if the defendant were an individual officer and the action were based on § 1983. It would also have had jurisdiction over the defendant school board if the action were based on established state common law or statutory law. A state policy that permits actions against state agencies for the failure of their officials to adequately police a parking lot and for the negligence of such officers in arresting a person on a roadside, but yet declines jurisdiction over federal actions for constitutional violations by the same persons can be based only on the rationale that such persons should not be held liable for § 1983 violations in the courts of the State. That reason, whether presented in terms of direct disagreement with substantive federal law or simple refusal to take cognizance of *381 the federal cause of action, flatly violates the Supremacy Clause. V Respondents offer two final arguments in support of the judgment of the District Court of Appeal.[24] First, at oral argument — but not in their brief — they argued that a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law. Second, respondents argue that sovereign immunity is not a creature of state law, but of long-established legal principles which have not been set aside by § 1983. We find no merit in these contentions. The fact that a rule is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect. It is settled that a court of otherwise competent jurisdiction may not avoid its parallel obligation under the Full Faith and Credit Clause to entertain another State's cause of action by invocation of the term "jurisdiction." See First Nat. Bank of Chicago v. United Air Lines, Inc., 342 U.S. 396 (1952); Hughes v. Fetter, 341 U.S. 609, 611 (1951); Broderick v. Rosner, 294 U.S. 629, 642-643 (1935); Kenney v. Supreme Lodge, Loyal Order of Moose, 252 U.S. 411 (1920). A State cannot "escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent." *382 Hughes, 341 U. S., at 611.[25] Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent. See Angel v. Bullington, 330 U.S. 183, 188-189 (1947); Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377 (1929); cf. White v. Hart, 13 Wall. 646, 653-654 (1872) (Contract Clause). As our discussion of Testa, McKnett, and Mondou establishes, the same is true with respect to a state court's obligations under the Supremacy Clause.[26] The force *383 of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word "jurisdiction." Indeed, if this argument had merit, the State of Wisconsin could overrule our decision in Felder v. Casey, 487 U.S. 131 (1988), by simply amending its notice-of-claim statute to provide that no state court would have jurisdiction of an action in which the plaintiff failed to give the required notice. The Supremacy Clause requires more than that. Respondents' argument that Congress did not intend to abrogate an immunity with an ancient common-law heritage is the same argument, in slightly different dress, as the argument that we have already rejected that the State are free to redefine the federal cause of action. Congress did take common-law principles into account in providing certain forms of absolute and qualified immunity, see Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974); Pierson v. Ray, 386 U.S. 547 (1967), and in excluding States and arms of the State from the definition of person, see Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Ngiraingas v. Sanchez, 495 U.S. 182 (1990); see also Quern v. Jordan, 440 U.S. 332 (1979). But as to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage. If we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to "persons" who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Section 1 of the Civil Rights Act of 1871, Rev. Stat. 1979, now codified as 42 U.S. C. 1983, creates a remedy for violations of federal rights committed by persons acting under color of state law.[1] State courts as well as federal courts have jurisdiction over 1983 cases. The question in *359 this case is whether a state-law defense of "sovereign immunity" is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum. I Petitioner, a former high school student, filed a complaint in the Circuit Court for Pinellas County, Florida, naming the School Board of Pinellas County and three school officials as defendants. He alleged that an assistant principal made an illegal search of his car while it was parked on school premises and that he was wrongfully suspended from regular classes for five days. Contending that the search and subsequent suspension violated rights under the Fourth and Fourteenth Amendments of the Federal Constitution and under similar provisions of the State Constitution, he prayed for damages and an order expunging any reference to the suspension from the school records. Defendants filed a motion to dismiss on various grounds, including failure to exhaust state administrative remedies.[2] The school board also contended that the court was without jurisdiction to hear the federal claims — but not the state claims — because the Florida waiver-of-sovereign-immunity statute did not extend to claims based on App. 13-14. The Circuit Court dismissed the complaint with prejudice, citing a state case requiring state-law challenges to be first presented to the District Court of Appeal and the Florida Supreme Court decision in App. 19. The District Court of Appeal for the Second District affirmed the dismissal of petitioner's 1983 claim against the *360 school board.[3] It held that the availability of sovereign immunity in a 1983 action brought in state court is a matter of state law, and that Florida's statutory waiver of sovereign immunity did not apply to 1983 cases. The court rejected the argument that whether a State has maintained its sovereign immunity from a 1983 suit in its state courts is a question of federal law. It wrote: "[W]hen a section 1983 action is brought in state court, the sole question to be decided on the basis of state law is whether the state has waived its common law sovereign immunity to the extent necessary to allow a section 1983 action in state court. Hill holds that Florida has not so waived its sovereign immunity. We therefore do not reach appellant's second issue in this case, i. e., whether under federal law a Florida school board is immune from a section 1983 law. There is no question under Florida law that agencies of the state, including school boards and municipalities, are the beneficiaries of sovereign immunity." The Court of Appeal acknowledged our holding in that a State cannot immunize an official from liability for injuries compensable under federal law. It held, however, that under Hill a State's invocation of a "state common law immunity from the use of its courts for suits against the state in those state courts" raised "purely a question of state law." 537 So. 2d, at The Florida Supreme Court denied review. In view of the importance of the question decided by the Court of Appeal, we granted certiorari. *361 II The question in this case stems from the Florida Supreme Court's decision in the Hill case. In that case, the plaintiff sought damages for common-law negligence and false imprisonment and violations of his constitutional rights under 1983 from the Florida Department of Corrections for the conduct of one of its probation supervisors. Hill argued that the department was a "person" under 1983, that it was responsible for the actions of its supervisor, and that it was subject to suit in the Circuit Court pursuant to the Florida waiver of sovereign immunity. Fla. Stat. 768.28[4] That statute provides that the State and its subdivisions, including municipalities and school boards, 768.28(2), are subject to suit in circuit court for tort claims "in the same manner and to the same extent as a private individual under like circumstances," 768.28(5).[5] Although the terms of the waiver *362 could be read narrowly to restrict liability to claims against the State in its proprietary capacity, the Florida courts have rejected that interpretation.[6] In 16 cases arising under Florida statutory and common law, the State Supreme Court has held that the State may be sued in respondent superior for the violation of nondiscretionary duties in the exercise of governmental authority. The Florida courts thus have entertained suits against state agencies for the violation of nondiscretionary duties committed in the performance of various governmental activities, including the roadside stop and arrest of an individual driving with an expired inspection sticker,[7] the negligent maintenance by city employees of a *363 storm sewer system,[8] the failure of a state caseworker to detect and prevent child abuse,[9] the negligent maintenance of county swimming pools and failure to warn or correct known dangerous conditions,[10] and the failure to protect a prison inmate from other inmates known to be dangerous.[11] Hill argued *364 that just as the State could be joined in an action for the violation of established state common-law or statutory duties, it was also subject to suit for violations of its nondiscretionary duty not to violate the Constitution. See The trial court dismissed Hill's 1983 claim but entered judgment on the jury's verdict in his favor on the common-law claims. On appeal, the District Court of Appeal affirmed the dismissal of the 1983 claim and reversed the judgment on the common-law claim. It also certified to the Florida Supreme Court the question whether Florida's statutory waiver of sovereign immunity permitted suits against the State and its agencies under Department of The State Supreme Court answered that question in the negative. cert. denied, Without citing any of its own sovereign immunity cases and relying solely on analogy to the Eleventh Amendment and decisions of the courts of other States, the State Supreme Court held that the Florida statute conferred a blanket immunity on governmental entities from federal civil rights actions under It stated: "While Florida is at liberty to waive its immunity from section 1983 actions, it has not done so. The recovery ceilings in section 768.28 were intended to waive sovereign immunity for state tort actions, not federal civil rights actions commenced under section " The court thus affirmed the dismissal of the 1983 claim but reversed the Court of Appeal's judgment on *365 the common-law claim and allowed the judgment for Hill on that claim to stand. On its facts, the disposition of the Hill case would appear to be unexceptional. The defendant in Hill was a state agency protected from suit in a federal court by the Eleventh Amendment. See ( 1983 does not "override the traditional sovereign immunity of the States").[12] As we held last Term in an entity with Eleventh Amendment immunity is not a "person" within the meaning of The anomaly identified by the State Supreme Court, and by the various state courts which it cited,[13] that a State might be forced to entertain in its own courts suits from which it was immune in federal court, is thus fully met by our decision in establishes that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under 1983 in either federal court or state court. The language and reasoning of the State Supreme Court, if not its precise holding, however, went further. That further step was completed by the District Court of Appeal in this case. As that court construed the law, Florida has extended *366 absolute immunity from suit not only to the State and its arms but also to municipalities, counties, and school districts that might otherwise be subject to suit under 1983 in federal court. That holding raises the concern that the state court may be evading federal law and discriminating against federal causes of action. The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is itself a federal question which we review de novo. See ; 466 U.S. ; ; ; ; ; Hill, The Inadequate State Ground, Whether the constitutional rights asserted by petitioner were " `given due recognition by the [Court of Appeal] is a question as to which the [petitioner is] entitled to invoke our judgment, and this [he has] done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support.' "[14] *367 III Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws "the supreme Law of the Land," and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. "The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent." ; see Minneapolis & St. Louis R. 2 ("[T]he governments and courts of both the Nation and the several States [are not] strange or foreign to each other in the broad sense of that word, but [are] all courts of a common country, all within the orbit of their lawful authority being charged with the duty to safeguard and enforce the right of every citizen without reference to the *368 particular exercise of governmental power from which the right may have arisen, if only the authority to enforce such right comes generally within the scope of the jurisdiction conferred by the government creating them"); The Relations Between State and Federal Law, ; see also 493 U.S.[15] As Alexander Hamilton expressed the principle in a classic passage: "[I]n every case in which they were not expressly excluded by the future acts of the national legislature, [state courts] will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. *369 Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited." The Federalist No. 82, p. 132 (emphasis added). Three corollaries follow from the proposition that "federal" law is part of the "Law of the Land" in the State: 1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of "valid excuse."[16] "The existence *370 of the jurisdiction creates an implication of duty to exercise it." 3 U.S. 1, ; see ; Missouri ex rel. St. Louis, B. & M. R. ;[17] *371 2. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source. "The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of [the State] as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State." Mondou, 3 U. S., ; see ; ; Minneapolis & St. Louis R. ; cf. (State may not discriminate against federal causes of action). 3. When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. ; Georgia Rail Road & Banking ; ; The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, "bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them." ; see also Southland ; The States thus have great latitude to establish the structure and jurisdiction of their own courts. See 101 U.S. In addition, States may apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law. See ; These principles are fundamental to a system of federalism in which the state courts share responsibility for the application *373 and enforcement of federal law. In Mondou, for example, we held that rights under the Federal Employers' Liability Act (FELA) "may be enforced, as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion." 3 U.S., at 59. The Connecticut courts had declined cognizance of FELA actions because the policy of the federal Act was "not in accord with the policy of the State," and it was "inconvenient and confusing" to apply federal law. We noted, as a matter of some significance, that Congress had not attempted "to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure," and found from the fact that the state court was a court of general jurisdiction with cognizance over wrongful-death actions that the court's jurisdiction was "appropriate to the occasion," "The existence of the jurisdiction creat[ed] an implication of duty to exercise it," at which could not be overcome by disagreement with the policy of the federal Act, In McKnett, the state court refused to exercise jurisdiction over a FELA cause of action against a foreign corporation for an injury suffered in another State. We held "[w]hile Congress has not attempted to compel states to provide courts for the enforcement of the Federal Employers' Liability Act, the Federal Constitution prohibits state courts of general jurisdiction from refusing to do so solely because the suit is brought under a federal law." 292 U.S., at Because the state court had "general jurisdiction of the class of actions to which that here brought belongs, in cases between litigants situated like those in the case at bar," the refusal to hear the FELA action constituted discrimination against rights arising under federal laws, in violation of the Supremacy Clause. We unanimously reaffirmed these principles in We held that the Rhode Island courts could not decline jurisdiction over treble damages claims under the federal *374 Emergency Price Control Act when their jurisdiction was otherwise "adequate and appropriate under established local law." 0 U.S., at 394. The Rhode Island court had distinguished our decisions in McKnett and Mondou on the grounds that the federal Act was a "penal statute," which would not have been enforceable under the Full Faith and Credit Clause if passed by another State. We rejected that argument. We observed that the Rhode Island court enforced the "same type of claim" arising under state law and claims for double damages under federal law. 0 U.S., at 394. We therefore concluded that the court had "jurisdiction adequate and appropriate under established local law to adjudicate this action." [18] The court could not decline to exercise this jurisdiction to enforce federal law by labeling it "penal." The policy of the federal Act was to be considered "the prevailing policy in every state" which the state court could not refuse to enforce " `because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.' " (quoting Minneapolis & St. Louis R. 241 U. S., at 2). On only three occasions have we found a valid excuse for a state court's refusal to entertain a federal cause of action. Each of them involved a neutral rule of judicial administration. In the state statute permitted discretionary dismissal of both federal and state claims where neither the plaintiff nor the defendant was a resident of the forum State.[19] In the City Court denied jurisdiction over a *375 FELA action on the grounds that the cause of action arose outside its territorial jurisdiction. Although the state court was not free to dismiss the federal claim "because it is a federal one," we found no evidence that the state courts "construed the state jurisdiction and venue laws in a discriminatory fashion." Finally, in Mayfield, we held that a state court could apply the doctrine of forum non conveniens to bar adjudication of a FELA case if the State "enforces its policy impartially so as not to involve a discrimination against Employers' Liability Act suits." IV The parties disagree as to the proper characterization of the District Court of Appeal's decision. Petitioner argues that the court adopted a substantive rule of decision that state agencies are not subject to liability under Respondents, stressing the court's language that it had not "opened its own courts for federal actions against the state," 537 So. 2d, at argue that the case simply involves the court's refusal to take cognizance of 1983 actions against state defendants. We conclude that whether the question is framed in pre-emption terms, as petitioner would have it, or in the obligation to assume jurisdiction over a "federal" cause of action, as respondents would have it, the Florida court's refusal to entertain one discrete category of 1983 claims, when the court entertains similar state-law actions against state defendants, violates the Supremacy Clause. If the District Court of Appeal meant to hold that governmental entities subject to 1983 liability enjoy an immunity over and above those already provided in 1983, that holding directly violates federal law. The elements of, and the defenses to, a federal cause of action are defined by federal law. See, e. g., Monessen Southwestern R. 376 U. S. 0, 5 ; Chesapeake & Ohio R. A State may not, by statute or common law, create a cause of action under 1983 against an entity whom Congress has not subjected to liability. Since this Court has construed the word "person" in 1983 to exclude States, neither a federal court nor a state court may entertain a 1983 action against such a defendant. Conversely, since the Court has held that municipal corporations and similar governmental entities are "persons," see 436 U.S. 6, ; cf. n. 9; Mt. Healthy City Bd. of a state court entertaining a 1983 action must adhere to that interpretation. "Municipal defenses — including an assertion of sovereign immunity — to a federal right of action are, of course, controlled by federal law." n. 30. "By including municipalities within the class of `persons' subject to liability for violations of the Federal Constitution and laws, Congress — the supreme sovereign on matters of federal law — abolished whatever vestige of the State's sovereign immunity the municipality possessed." In we unanimously concluded that a California statute that purported to immunize public entities and public employees from any liability for parole release decisions was pre-empted by 1983 "even though the federal cause of action [was] being asserted in the state courts." We explained: " `Conduct by persons acting under color of state law which is wrongful under 42 U.S. C. 1983 or 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction *377 may be enforced. See The immunity claim raises a question of federal law.' cert. denied," n. 8. In we followed Martinez and held that a Wisconsin notice-of-claim statute that effectively shortened the statute of limitations and imposed an exhaustion requirement on claims against public agencies and employees was pre-empted insofar as it was applied to 1983 actions. After observing that the lower federal courts, with one exception, had determined that notice-of-claim statutes were inapplicable to 1983 actions brought in federal courts, we stated that such a consensus also demonstrated that "enforcement of the notice-of-claim statute in 1983 actions brought in state court. interfer[ed] with and frustrat[ed] the substantive right Congress created." We concluded: "The decision to subject state subdivisions to liability for violations of federal rights was a choice that Congress, not the Wisconsin Legislature, made, and it is a decision that the State has no authority to override." While the Florida Supreme Court's actual decision in Hill is consistent with the foregoing reasoning, the Court of Appeal's extension of Hill to persons subject by 1983 to liability is flatly inconsistent with that reasoning and the holdings in both Martinez and Felder. Federal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations. See St. 121-1 ; 436 U.S. 6 Florida law, as interpreted by the District Court of Appeal, would make all such defendants absolutely immune from liability under the federal statute. To the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional *378 violations, that disagreement cannot override the dictates of federal law. "Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action." If, on the other hand, the District Court of Appeal meant that 1983 claims are excluded from the category of tort claims that the Circuit Court could hear against a school board, its holding was no less violative of federal law. Cf. Atlantic Coast Line R. This case does not present the questions whether Congress can require the States to create a forum with the capacity to enforce federal statutory rights or to authorize service of process on parties who would not otherwise be subject to the court's jurisdiction.[20] The State of Florida has constituted the Circuit Court for Pinellas County as a court of general jurisdiction.[21] It exercises jurisdiction over tort claims by private citizens against state entities (including school boards), of the size and type of petitioner's claim here, and it can enter judgment against them. That court also exercises jurisdiction over 1983 actions against individual officers[] and is fully competent to provide the remedies the federal *379 statute requires. Cf. 396 U.S. 9, Petitioner has complied with all the state-law procedures for invoking the jurisdiction of that court. The mere facts, as argued by respondents' amici, that state common law and statutory law do not make unlawful the precise conduct that 1983 addresses and that 1983 actions "are more likely to be frivolous than are other suits," Brief for Washington Legal Foundation et al. as Amici Curiae 17, clearly cannot provide sufficient justification for the State's refusal to entertain such actions. These reasons have never been asserted by the State and are not asserted by the school board. More importantly, they are not the kind of neutral policy that could be a "valid excuse" for the state court's refusal to entertain federal actions. To the extent that the Florida rule is based upon the judgment that parties who are otherwise subject to the jurisdiction of the court should not be held liable for activity that would not subject them to liability under state law, we understand that to be only another way of saying that the court disagrees with the content of federal law. Sovereign immunity in Florida turns on the nature of the claim — whether the duty allegedly breached is discretionary — not on the subject matter of the dispute. There is no question that the Circuit Court, which entertains state common-law and statutory claims against state entities in a variety of their capacities, ranging from law enforcement to schooling to the protection of individuals using parking lots,[23] has jurisdiction over the subject of this suit. That court cannot reject petitioner's 1983 claim *380 because it has chosen, for substantive policy reasons, not to adjudicate other claims which might also render the school board liable. The federal law is law in the State as much as laws passed by the state legislature. A "state court cannot `refuse to enforce the right arising from the law of the United States because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.' " 0 U. S., (quoting Minneapolis & St. Louis R. 241 U. S., at 2). The argument by amici that suits predicated on federal law are more likely to be frivolous and have less of an entitlement to the State's limited judicial resources warrants little response. A State may adopt neutral procedural rules to discourage frivolous litigation of all kinds, as long as those rules are not pre-empted by a valid federal law. A State may not, however, relieve congestion in its courts by declaring a whole category of federal claims to be frivolous. Until it has been proved that the claim has no merit, that judgment is not up to the States to make. Respondents have offered no neutral or valid excuse for the Circuit Court's refusal to hear 1983 actions against state entities. The Circuit Court would have had jurisdiction if the defendant were an individual officer and the action were based on It would also have had jurisdiction over the defendant school board if the action were based on established state common law or statutory law. A state policy that permits actions against state agencies for the failure of their officials to adequately police a parking lot and for the negligence of such officers in arresting a person on a roadside, but yet declines jurisdiction over federal actions for constitutional violations by the same persons can be based only on the rationale that such persons should not be held liable for 1983 violations in the courts of the State. That reason, whether presented in terms of direct disagreement with substantive federal law or simple refusal to take cognizance of *381 the federal cause of action, flatly violates the Supremacy Clause. V Respondents offer two final arguments in support of the judgment of the District Court of Appeal.[24] First, at oral argument — but not in their brief — they argued that a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law. Second, respondents argue that sovereign immunity is not a creature of state law, but of long-established legal principles which have not been set aside by We find no merit in these contentions. The fact that a rule is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect. It is settled that a court of otherwise competent jurisdiction may not avoid its parallel obligation under the Full Faith and Credit Clause to entertain another State's cause of action by invocation of the term "jurisdiction." See First Nat. Bank of ; U.S. 609, ; ; A State cannot "escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent." *382 Hughes, U. S., at[25] Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent. See 0 U.S. 183, ; ; cf. White v. As our discussion of McKnett, and Mondou establishes, the same is true with respect to a state court's obligations under the Supremacy Clause.[26] The force *383 of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word "jurisdiction." Indeed, if this argument had merit, the State of Wisconsin could overrule our decision in by simply amending its notice-of-claim statute to provide that no state court would have jurisdiction of an action in which the plaintiff failed to give the required notice. The Supremacy Clause requires more than that. Respondents' argument that Congress did not intend to abrogate an immunity with an ancient common-law heritage is the same argument, in slightly different dress, as the argument that we have already rejected that the State are free to redefine the federal cause of action. Congress did take common-law principles into account in providing certain forms of absolute and qualified immunity, see ; ; and in excluding States and arms of the State from the definition of person, see ; ; see also But as to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage. If we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to "persons" who would otherwise be subject to 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Ginsburg

majority

Sheriff v. Gillie

https://www.courtlistener.com/opinion/3203763/sheriff-v-gillie/

https://www.courtlistener.com/api/rest/v3/clusters/3203763/

2015-053

Ohio law authorizes the State’s Attorney General to retain, as independent contractors, “special counsel” to act on the Attorney General’s behalf in collecting certain debts owed to Ohio or an instrumentality of the State. Ohio Rev. Code Ann. §109.08 (Lexis 2014). As required by the Attorney General, special counsel use the Attorney Gen- eral’s letterhead in communicating with debtors. App. 93. The Fair Debt Collection Practices Act, 91 Stat. 874, 15 U.S. C. §1692 et seq. (FDCPA or Act), aims to eliminate “abusive debt collection practices.” §1692(a)–(d). To that end, the Act imposes various procedural and substantive obligations on debt collectors. See, e.g., §1692d (prohibit- ing harassing, oppressive, or abusive conduct); §1692e (barring “false, deceptive, or misleading representation[s] . . . in connection with the collection of any debt”); §1692g(a) (setting out requirements for the contents of initial notices to consumers). The FDCPA excludes from the definition of “debt collector” “any officer or employee of the United States or any State to the extent that collecting . . . any debt is in the performance of his official duties.” 2 SHERIFF v. GILLIE Opinion of the Court §1692a(6)(C). This case involves litigation between debtors to Ohio institutions and special counsel who sought to collect money owed to the institutions. The petition raises two questions: (1) Do special counsel appointed by Ohio’s Attorney General qualify as “state officers” exempt from the FDCPA’s governance? (2) Is special counsel’s use of the Attorney General’s letterhead a false or misleading representation proscribed by §1692e? Assuming, arguendo, that special counsel do not rank as “state officers,” we hold, nevertheless, that their use of the Attorney General’s letterhead does not offend §1692e. Not fairly described as “false” or “misleading,” use of the let- terhead accurately conveys that special counsel, in seeking to collect debts owed to the State, do so on behalf of, and as instructed by, the Attorney General. I Responding to reports of abusive practices by third- party collectors of consumer debts, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” §1692(e). Primarily governing “debt collector[s],” the Act defines that term to include “any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another.” §1692a(6). Excluded from the definition is “any offi- cer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.” §1692a(6)(C). Among other proscriptions, the FDCPA prohibits debt collectors from employing “false, deceptive, or misleading” Cite as: 578 U. S. ____ (2016) 3 Opinion of the Court practices. §1692e. “Without limiting” this general ban, §1692e enumerates 16 categories of conduct that qualify as false or misleading. Two of those categories are perti- nent to our review: “[t]he use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of . . . any State, or which creates a false impression as to its source, authorization, or ap- proval,” §1692e(9); and “[t]he use of any business, com- pany, or organization name other than the true name of the debt collector’s business, company, or organization,” §1692e(14). A debt collector who violates the Act is liable for both actual and statutory damages. §1692k(a). This case concerns the debt collection practices of those charged with collecting overdue debts owed to Ohio-owned agencies and instrumentalities. Among such debts are past-due tuition owed to public universities and unpaid medical bills from state-run hospitals. Under Ohio law, overdue debts are certified to the State’s Attorney Gen- eral, who is responsible for collecting, settling, or other- wise disposing of them. Ohio Rev. Code Ann. §131.02(A), (C), (F). Carrying out this responsibility, the Attorney General may appoint private attorneys as “special counsel to represent the state” in collecting certified claims. §109.08. Special counsel enter into year-long retention agree- ments “on an independent contractor basis” to “provide legal services on behalf of the Attorney General to one or more State Clients.” App. 143–144. The Attorney Gen- eral’s Office assigns individual claims to special counsel, who are paid a set percentage of the funds they collect for the State. §109.08; id., at 144–145, 149–152. With “the prior approval of the Attorney General,” special counsel may litigate and settle claims on behalf of the State. Id., at 149. Special counsel may continue to represent private clients so long as doing so does not create a conflict of 4 SHERIFF v. GILLIE Opinion of the Court interest with their work for the Attorney General. Among the special counsel appointed by the Attorney General in 2012 were Mark Sheriff, a partner at the law firm of Wiles, Boyle, Burkholder, and Bringardner Co. LPA (Wiles firm), and Eric Jones, of the Law Offices of Eric A. Jones, LLC. When special counsel contact debtors on behalf of the State, the Attorney General requires them to use his letterhead. Id., at 93. Consistent with this requirement, Sarah Sheriff, an employee of the Wiles firm, sent re- spondent Hazel Meadows a debt collection letter on the Ohio Attorney General’s letterhead. The letter reads: “Sir/Madam: Per your request, this is a letter with the current balance owed for your University of Akron loan that has been placed with the Ohio Attorney General. Feel free to contact me at [telephone num- ber] should you have any further questions.” Gillie v. Law Office of Eric A. Jones, LLC, 785 F.3d 1091, 1119 (CA6 2015). The amount Meadows owed is listed in the letter’s subject line. Ibid. After the body of the letter, Sheriff ’s signature appears, followed by the firm’s name, its address, and the designation “Special Counsel to the Attorney General for the State of Ohio.” Ibid.1 The letter concludes with a notice that it is “an attempt to collect a debt” and that the senders “are debt collectors.” Ibid. Respondent Pamela Gillie received a letter, also on the Ohio Attorney General’s letterhead, in relation to a debt she owed to a state-run hospital: “Dear Sir/Madam, You have chosen to ignore repeated attempts to resolv[e] the referenced . . . medical claim. If you cannot make immediate full payment call —————— 1 As noted above, Mark Sheriff, not Sarah Sheriff, was appointed special counsel. Cite as: 578 U. S. ____ (2016) 5 Opinion of the Court DENISE HALL at Eric A. Jones, L.L.C., [phone num- ber] at my office to make arrangements to pay this debt.” Id., at 1118. That text is followed by a bolded, all-caps notice that the letter is “a communication from a debt collector.” Ibid. Signed by Eric A. Jones, “Outside Counsel for the Attorney General’s Office,” the letter includes Jones’s telephone and fax numbers. Ibid. A tear-away portion at the bottom of the page for return of payment is addressed to Jones’s law office. Ibid. After receiving these letters, Meadows and Gillie filed a putative class action in the United States District Court for the Southern District of Ohio, asserting that Mark Sheriff, Sarah Sheriff, Jones, and their law firms had violated the FDCPA. By sending debt collection notices on the Attorney General’s letterhead rather than the letter- head of their private firms, Meadows and Gillie alleged, defendants had employed deceptive and misleading means to attempt to collect consumer debts. The Ohio Attorney General intervened as a defendant and counterclaimant, seeking a declaratory judgment that special counsel’s use of his letterhead, as authorized by Ohio law,2 is neither false nor misleading. Further, the Attorney General urged, special counsel should be deemed officers of the State and therefore outside the FDCPA’s compass. The District Court granted summary judgment for defendants, concluding that special counsel are “officers” of the State of Ohio and, in any event, their use of the Attorney General’s letterhead is not false or misleading. —————— 2 Ohio Rev. Code Ann. §109.08 (Lexis 2014) requires the Attorney General to provide special counsel with his “official letterhead station- ery” for the collection of tax debts. The Attorney General has interpreted this provision as mandating the use of his letterhead for tax claims, but permitting its use for the collection of other debts. Whether this is a correct interpretation of Ohio law is not before us. 6 SHERIFF v. GILLIE Opinion of the Court Gillie v. Law Office of Eric A. Jones, LLC, 37 F. Supp. 3d 928 (2014). The Court of Appeals for the Sixth Circuit vacated the District Court’s judgment. Because special counsel are independent contractors, the court determined, they are not entitled to the FDCPA’s state-officer exemption. 785 F.3d, at 1097–1098. Turning to the deceptive and mis- leading practices charge, the Court of Appeals concluded that there is a genuine issue of material fact as to whether an unsophisticated consumer would be misled “into believ- ing it is the Attorney General who is collecting on the account.” Id., at 1106. The court therefore remanded the case for trial on this issue. Id., at 1110. Judge Sutton dissented from both holdings. In his view, “deputizing . . . private lawyers to act as assistant attor- neys general makes them ‘officers’ of the State for . . . collection purposes.” Ibid. He further concluded that special counsel’s use of the Attorney General’s letterhead “accurately describes the relevant legal realities—that the law firm acts as an agent of the Attorney General and stands in [his] shoes . . . in collecting money owed to the State.” Id., at 1110–1111. The Sixth Circuit denied en banc rehearing. We granted certiorari, 577 U. S. ___ (2015), and now reverse.3 II As they did below, petitioners maintain that, as special counsel appointed by the Attorney General, they are “of- ficers” exempt from the FDCPA’s governance, and that, in any case, the debt collection letters they sent to respond- ents comply with the Act. We pretermit the question —————— 3 We granted the petition for certiorari filed by Mark Sheriff, Sarah Sheriff, the Wiles firm, and the Ohio Attorney General. Jones and the Law Offices of Eric A. Jones, LLC, filed a separate petition for certio- rari as well as a separate brief in this case in support of petitioners. We refer to defendants collectively as “petitioners.” Cite as: 578 U. S. ____ (2016) 7 Opinion of the Court whether, as petitioners contend and Judge Sutton would have held, special counsel qualify as state officers. For purposes of this decision, we assume, arguendo, that special counsel are not “officers” within the meaning of the Act and, therefore, rank simply as “debt collectors” within the FDCPA’s compass. We conclude, nevertheless, that petitioners complied with the Act, as their use of the At- torney General’s letterhead accurately conveys that spe- cial counsel act on behalf of the Attorney General. Special counsel’s use of the Attorney General’s letter- head at the Attorney General’s direction does not offend §1692e’s general prohibition against “false . . . or mislead- ing representation[s].” The letterhead identifies the prin- cipal—Ohio’s Attorney General—and the signature block names the agent—a private lawyer hired as outside coun- sel to the Attorney General. It would not transgress §1692e, respondents acknowledge, if, in lieu of using the Attorney General’s letterhead, special counsel’s communi- cations opened with a bold-face statement: “We write to you as special counsel to the [A]ttorney [G]eneral who has authorized us to collect a debt you owe to [the State or an instrumentality thereof].” Tr. of Oral Arg. 31 (internal quotation marks omitted). If that representation is accu- rate, i.e., not “false . . . or misleading,” it would make scant sense to rank as unlawful use of a letterhead conveying the very same message, particularly in view of the inclu- sion of special counsel’s separate contact information and the conspicuous notation that the letter is sent by a debt collector.4 Our conclusion is bolstered by the character of the rela- —————— 4 Although respondents argued below that Sarah Sheriff’s inaccurate use of the “special counsel” designation also violates the FDCPA, they have not pursued that argument before this Court. In any case, the letter merely conveyed the debtor’s remaining balance, without any suggestion of followup action. Sarah Sheriff’s misstatement of her title thus qualifies as an immaterial, harmless mistake. 8 SHERIFF v. GILLIE Opinion of the Court tionship between special counsel and the Attorney Gen- eral. As earlier recounted, special counsel “provide legal services on behalf of the Attorney General to one or more State Clients” in furtherance of the Attorney General’s responsibilities as debt collector for state-owned entities and instrumentalities. App. 143–144. In performing this function, special counsel work closely with attorneys in the Attorney General’s Office. For example, Assistant Attor- neys General “frequently assist Special Counsel in draft- ing pleadings, and sometimes join cases as co-counsel to assist Special Counsel with particularly sensitive or com- plex cases.” Id., at 102. Special counsel and Assistant Attorneys General even stand in one another’s stead, as needed, to cover proceedings in ongoing litigation. Ibid. Given special counsel’s alliance with attorneys within the Attorney General’s Office, a debtor’s impression that a letter from special counsel is a letter from the Attorney General’s Office is scarcely inaccurate.5 On safe ground with respect to §1692e’s general pro- scription against false and misleading representations, special counsel’s use of the Attorney General’s letterhead is consistent too with §1692e(9)’s specific prohibition against “falsely represent[ing]” that a communication is “authorized, issued, or approved” by a State. In enacting this provision, Congress sought to prevent debt collectors from “misrepresenting” that they are “government offi- cial[s].” S. Rep. No. 95–382, p. 8 (1977). Here, the Attor- ney General authorized—indeed required—special counsel to use his letterhead in sending debt collection communi- cations. Special counsel create no false impression in doing just what they have been instructed to do. Instead, their use of the Attorney General’s letterhead conveys on —————— 5 We address here only “special counsel.” The considerations relevant to that category may not carry over to other debt-collector relationships. Cite as: 578 U. S. ____ (2016) 9 Opinion of the Court whose authority special counsel writes to the debtor. As a whole, the communication alerts the debtor to both the basis for the payment obligation and the official responsi- ble for enforcement of debts owed to the State, while the signature block conveys who the Attorney General has engaged to collect the debt. Nor did special counsel, in sending letters on the Attor- ney General’s letterhead, use a name other than their “true name,” in violation of §1692e(14). Although the FDCPA does not say “what a ‘true name’ is, its import is straightforward: A debt collector may not lie about his institutional affiliation.” 785 F.3d, at 1115 (Sutton, J., dissenting). Special counsel do not employ a false name when using the Attorney General’s letterhead at his in- struction, for special counsel, as the Attorney General’s agents, act for him in debt-related matters. Far from misrepresenting special counsel’s identity, letters sent by special counsel accurately identify the office primarily responsible for collection of the debt (the Attorney Gen- eral), special counsel’s affiliation with that office, and the address (special counsel’s law firm) to which payment should be sent.6 We further note a federalism concern. “Ohio’s enforce- ment of its civil code—by collecting money owed to it—[is] a core sovereign function.” Gillie v. Law Office of Eric A. Jones, LLC, No. 14–3836 (CA6, July 14, 2015), App. to Pet. for Cert. 10a (Sutton, J., dissenting from denial of rehear- ing en banc). Ohio’s Attorney General has chosen to appoint special counsel to assist him in fulfilling his obliga- —————— 6 Because we conclude that the letters sent by petitioners were truth- ful, we need not consider the parties’ arguments as to whether a false or misleading statement must be material to violate the FDCPA, or whether a potentially false or misleading statement should be viewed from the perspective of “the least sophisticated consumer,” Brief for Respondent Gillie et al. 57, or “[t]he average consumer who has de- faulted on a debt,” Brief for Petitioners 41. 10 SHERIFF v. GILLIE Opinion of the Court tion to collect the State’s debts, and he has instructed his appointees to use his letterhead when acting on his behalf. There is no cause, in this case, to construe federal law in a manner that interferes with “States’ arrangements for conducting their own governments.” Nixon v. Missouri Municipal League, 541 U.S. 125, 140 (2004) (citing Greg- ory v. Ashcroft, 501 U.S. 452, 460 (1991)). The Sixth Circuit’s contrary exposition is unconvincing. Use of the Attorney General’s letterhead, the Court of Appeals emphasized, has led to confusion among debtors, as the Attorney General has received phone calls inquiring whether letters sent by special counsel are authentic. 785 F.3d, at 1107. But the Sixth Circuit overlooked that the Attorney General’s prompt and invariable answer to those inquiries was “yes.” To the extent that consumers may be concerned that the letters are a “scam,” the solution is for special counsel to say more, not less, about their role as agents of the Attorney General. Special counsel’s use of the Attorney General’s letterhead, furthermore, encour- ages consumers to use official channels to ensure the legitimacy of the letters, assuaging the very concern the Sixth Circuit identified. In addition to the specter of consumer confusion, the Sixth Circuit stressed the risk of intimidation—that the Attorney General’s letterhead would “place pressure on those individuals receiving the letters” to pay their state debts. Id., at 1105. There are two bases for this concern, neither of which is persuasive. First, invocation of the Attorney General’s imprimatur could lead debtors to prioritize their debt to the State over other, private debts out of a belief that the consequences of failing to pay a state debt would be more severe. This impression is not false; the State does have enforcement powers beyond those afforded private creditors. A debtor’s tax refund, for example, “may be applied in satisfaction” of her debt, regardless of whether the State has obtained a judgment, Cite as: 578 U. S. ____ (2016) 11 Opinion of the Court Ohio Rev. Code Ann. §5747.12 (Lexis 2013), and a debt owed to the State takes priority over most private debts in state probate proceedings, §2117.25(A) (Lexis Supp. 2015). “The special consequences of state debts explain why the Act bars debt collectors unaffiliated with a State from using the State’s name to scare debtors into paying. When the State itself is doing the demanding, however, nothing about the resulting fear misleads.” 785 F.3d, at 1116 (Sutton, J., dissenting). In other words, §1692e bars debt collectors from deceiving or misleading consumers; it does not protect consumers from fearing the actual consequences of their debts. Second, debtors might worry that the letters imply that the Attorney General, as the State’s top law enforcement official, intends to take punitive action against them. “But neither of the milquetoast letters [received by respond- ents] . . . threatens criminal prosecution, civil penalties, or any action whatsoever.” Id., at 1116–1117. Use of the Attorney General’s letterhead merely clarifies that the debt is owed to the State, and the Attorney General is the State’s debt collector. The FDCPA is not sensibly read to require special counsel to obscure that reality.7 * * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 7 Having determined that use of the Attorney General’s letterhead inaccurately suggested that the letters were from the Attorney Gen- eral’s Office, the Sixth Circuit remanded to the District Court for trial on whether this practice was “materially false, deceptive and mislead- ing.” Gillie v. Law Office of Eric A. Jones, LLC, 785 F.3d 1091, 1109– 1110 (2015). But all of the relevant facts are undisputed, and the application of the FDCPA to those facts is a question of law. The District Court therefore properly granted summary judgment for defendants

Ohio law authorizes the State’s Attorney General to retain, as independent contractors, “special counsel” to act on the Attorney General’s behalf in collecting certain debts owed to Ohio or an instrumentality of the State. Ohio Rev. Code Ann. (Lexis 2014). As required by the Attorney General, special counsel use the Attorney Gen- eral’s letterhead in communicating with debtors. App. 93. The Fair Debt Collection Practices Act, 15 U.S. C. et seq. (FDCPA or Act), aims to eliminate “abusive debt collection practices.” (a)–(d). To that end, the Act imposes various procedural and substantive obligations on debt collectors. See, e.g., d (prohibit- ing harassing, oppressive, or abusive conduct); e (barring “false, deceptive, or misleading representation[s] in connection with the collection of any debt”); g(a) (setting out requirements for the contents of initial notices to consumers). The FDCPA excludes from the definition of “debt collector” “any officer or employee of the United States or any State to the extent that collecting any debt is in the performance of his official duties.” 2 SHERIFF v. GILLIE Opinion of the Court a(6)(C). This case involves litigation between debtors to Ohio institutions and special counsel who sought to collect money owed to the institutions. The petition raises two questions: (1) Do special counsel appointed by Ohio’s Attorney General qualify as “state officers” exempt from the FDCPA’s governance? (2) Is special counsel’s use of the Attorney General’s letterhead a false or misleading representation proscribed by e? Assuming, arguendo, that special counsel do not rank as “state officers,” we hold, nevertheless, that their use of the Attorney General’s letterhead does not offend e. Not fairly described as “false” or “misleading,” use of the let- terhead accurately conveys that special counsel, in seeking to collect debts owed to the State, do so on behalf of, and as instructed by, the Attorney General. I Responding to reports of abusive practices by third- party collectors of consumer debts, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” (e). Primarily governing “debt collector[s],” the Act defines that term to include “any person in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect debts owed or due or asserted to be owed or due another.” a(6). Excluded from the definition is “any offi- cer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.” a(6)(C). Among other proscriptions, the FDCPA prohibits debt collectors from employing “false, deceptive, or misleading” Cite as: 578 U. S. (2016) 3 Opinion of the Court practices. e. “Without limiting” this general ban, e enumerates 16 categories of conduct that qualify as false or misleading. Two of those categories are perti- nent to our review: “[t]he use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of any State, or which creates a false impression as to its source, authorization, or ap- proval,” e(9); and “[t]he use of any business, com- pany, or organization name other than the true name of the debt collector’s business, company, or organization,” e(14). A debt collector who violates the Act is liable for both actual and statutory damages. k(a). This case concerns the debt collection practices of those charged with collecting overdue debts owed to Ohio-owned agencies and instrumentalities. Among such debts are past-due tuition owed to public universities and unpaid medical bills from state-run hospitals. Under Ohio law, overdue debts are certified to the State’s Attorney Gen- eral, who is responsible for collecting, settling, or other- wise disposing of them. (A), (C), (F). Carrying out this responsibility, the Attorney General may appoint private attorneys as “special counsel to represent the state” in collecting certified claims. Special counsel enter into year-long retention agree- ments “on an independent contractor basis” to “provide legal services on behalf of the Attorney General to one or more State Clients.” App. 143–144. The Attorney Gen- eral’s Office assigns individual claims to special counsel, who are paid a set percentage of the funds they collect for the State. ; at 144–145, 149–152. With “the prior approval of the Attorney General,” special counsel may litigate and settle claims on behalf of the State. at 149. Special counsel may continue to represent private clients so long as doing so does not create a conflict of 4 SHERIFF v. GILLIE Opinion of the Court interest with their work for the Attorney General. Among the special counsel appointed by the Attorney General in 2012 were Mark Sheriff, a partner at the law firm of Wiles, Boyle, Burkholder, and Bringardner Co. LPA (Wiles firm), and Eric Jones, of the Law Offices of Eric A. Jones, LLC. When special counsel contact debtors on behalf of the State, the Attorney General requires them to use his letterhead. Consistent with this requirement, Sarah Sheriff, an employee of the Wiles firm, sent re- spondent Hazel Meadows a debt collection letter on the Ohio Attorney General’s letterhead. The letter reads: “Sir/Madam: Per your request, this is a letter with the current balance owed for your University of Akron loan that has been placed with the Ohio Attorney General. Feel free to contact me at [telephone num- ber] should you have any further questions.” Gillie v. Law Office of Eric A. Jones, LLC, (CA6 2015). The amount Meadows owed is listed in the letter’s subject line. After the body of the letter, Sheriff ’s signature appears, followed by the firm’s name, its address, and the designation “Special Counsel to the Attorney General for the State of Ohio.” 1 The letter concludes with a notice that it is “an attempt to collect a debt” and that the senders “are debt collectors.” Respondent Pamela Gillie received a letter, also on the Ohio Attorney General’s letterhead, in relation to a debt she owed to a state-run hospital: “Dear Sir/Madam, You have chosen to ignore repeated attempts to resolv[e] the referenced medical claim. If you cannot make immediate full payment call —————— 1 As noted above, Mark Sheriff, not Sarah Sheriff, was appointed special counsel. Cite as: 578 U. S. (2016) 5 Opinion of the Court DENISE HALL at Eric A. Jones, L.L.C., [phone num- ber] at my office to make arrangements to pay this debt.” That text is followed by a bolded, all-caps notice that the letter is “a communication from a debt collector.” Signed by Eric A. Jones, “Outside Counsel for the Attorney General’s Office,” the letter includes Jones’s telephone and fax numbers. A tear-away portion at the bottom of the page for return of payment is addressed to Jones’s law office. After receiving these letters, Meadows and Gillie filed a putative class action in the United States District Court for the Southern District of Ohio, asserting that Mark Sheriff, Sarah Sheriff, Jones, and their law firms had violated the FDCPA. By sending debt collection notices on the Attorney General’s letterhead rather than the letter- head of their private firms, Meadows and Gillie alleged, defendants had employed deceptive and misleading means to attempt to collect consumer debts. The Ohio Attorney General intervened as a defendant and counterclaimant, seeking a declaratory judgment that special counsel’s use of his letterhead, as authorized by Ohio law,2 is neither false nor misleading. Further, the Attorney General urged, special counsel should be deemed officers of the State and therefore outside the FDCPA’s compass. The District Court granted summary judgment for defendants, concluding that special counsel are “officers” of the State of Ohio and, in any event, their use of the Attorney General’s letterhead is not false or misleading. —————— 2 Ohio Rev. Code Ann. (Lexis 2014) requires the Attorney General to provide special counsel with his “official letterhead station- ery” for the collection of tax debts. The Attorney General has interpreted this provision as mandating the use of his letterhead for tax claims, but permitting its use for the collection of other debts. Whether this is a correct interpretation of Ohio law is not before us. 6 SHERIFF v. GILLIE Opinion of the Court 37 F. Supp. 3d 928 (2014). The Court of Appeals for the Sixth Circuit vacated the District Court’s judgment. Because special counsel are independent contractors, the court determined, they are not entitled to the FDCPA’s state-officer exemption. 785 F.3d, at 1097–1098. Turning to the deceptive and mis- leading practices charge, the Court of Appeals concluded that there is a genuine issue of material fact as to whether an unsophisticated consumer would be misled “into believ- ing it is the Attorney General who is collecting on the account.” The court therefore remanded the case for trial on this issue. Judge Sutton dissented from both holdings. In his view, “deputizing private lawyers to act as assistant attor- neys general makes them ‘officers’ of the State for collection purposes.” He further concluded that special counsel’s use of the Attorney General’s letterhead “accurately describes the relevant legal realities—that the law firm acts as an agent of the Attorney General and stands in [his] shoes in collecting money owed to the State.” –1111. The Sixth Circuit denied en banc rehearing. We granted certiorari, 577 U. S. (2015), and now reverse.3 II As they did below, petitioners maintain that, as special counsel appointed by the Attorney General, they are “of- ficers” exempt from the FDCPA’s governance, and that, in any case, the debt collection letters they sent to respond- ents comply with the Act. We pretermit the question —————— 3 We granted the petition for certiorari filed by Mark Sheriff, Sarah Sheriff, the Wiles firm, and the Ohio Attorney General. Jones and the Law Offices of Eric A. Jones, LLC, filed a separate petition for certio- rari as well as a separate brief in this case in support of petitioners. We refer to defendants collectively as “petitioners.” Cite as: 578 U. S. (2016) 7 Opinion of the Court whether, as petitioners contend and Judge Sutton would have held, special counsel qualify as state officers. For purposes of this decision, we assume, arguendo, that special counsel are not “officers” within the meaning of the Act and, therefore, rank simply as “debt collectors” within the FDCPA’s compass. We conclude, nevertheless, that petitioners complied with the Act, as their use of the At- torney General’s letterhead accurately conveys that spe- cial counsel act on behalf of the Attorney General. Special counsel’s use of the Attorney General’s letter- head at the Attorney General’s direction does not offend e’s general prohibition against “false or mislead- ing representation[s].” The letterhead identifies the prin- cipal—Ohio’s Attorney General—and the signature block names the agent—a private lawyer hired as outside coun- sel to the Attorney General. It would not transgress e, respondents acknowledge, if, in lieu of using the Attorney General’s letterhead, special counsel’s communi- cations opened with a bold-face statement: “We write to you as special counsel to the [A]ttorney [G]eneral who has authorized us to collect a debt you owe to [the State or an instrumentality thereof].” Tr. of Oral Arg. 31 (internal quotation marks omitted). If that representation is accu- rate, i.e., not “false or misleading,” it would make scant sense to rank as unlawful use of a letterhead conveying the very same message, particularly in view of the inclu- sion of special counsel’s separate contact information and the conspicuous notation that the letter is sent by a debt collector.4 Our conclusion is bolstered by the character of the rela- —————— 4 Although respondents argued below that Sarah Sheriff’s inaccurate use of the “special counsel” designation also violates the FDCPA, they have not pursued that argument before this Court. In any case, the letter merely conveyed the debtor’s remaining balance, without any suggestion of followup action. Sarah Sheriff’s misstatement of her title thus qualifies as an immaterial, harmless mistake. 8 SHERIFF v. GILLIE Opinion of the Court tionship between special counsel and the Attorney Gen- eral. As earlier recounted, special counsel “provide legal services on behalf of the Attorney General to one or more State Clients” in furtherance of the Attorney General’s responsibilities as debt collector for state-owned entities and instrumentalities. App. 143–144. In performing this function, special counsel work closely with attorneys in the Attorney General’s Office. For example, Assistant Attor- neys General “frequently assist Special Counsel in draft- ing pleadings, and sometimes join cases as co-counsel to assist Special Counsel with particularly sensitive or com- plex cases.” Special counsel and Assistant Attorneys General even stand in one another’s stead, as needed, to cover proceedings in ongoing litigation. Given special counsel’s alliance with attorneys within the Attorney General’s Office, a debtor’s impression that a letter from special counsel is a letter from the Attorney General’s Office is scarcely inaccurate.5 On safe ground with respect to e’s general pro- scription against false and misleading representations, special counsel’s use of the Attorney General’s letterhead is consistent too with e(9)’s specific prohibition against “falsely represent[ing]” that a communication is “authorized, issued, or approved” by a State. In enacting this provision, Congress sought to prevent debt collectors from “misrepresenting” that they are “government offi- cial[s].” S. Rep. No. 95–382, p. 8 (1977). Here, the Attor- ney General authorized—indeed required—special counsel to use his letterhead in sending debt collection communi- cations. Special counsel create no false impression in doing just what they have been instructed to do. Instead, their use of the Attorney General’s letterhead conveys on —————— 5 We address here only “special counsel.” The considerations relevant to that category may not carry over to other debt-collector relationships. Cite as: 578 U. S. (2016) 9 Opinion of the Court whose authority special counsel writes to the debtor. As a whole, the communication alerts the debtor to both the basis for the payment obligation and the official responsi- ble for enforcement of debts owed to the State, while the signature block conveys who the Attorney General has engaged to collect the debt. Nor did special counsel, in sending letters on the Attor- ney General’s letterhead, use a name other than their “true name,” in violation of e(14). Although the FDCPA does not say “what a ‘true name’ is, its import is straightforward: A debt collector may not lie about his institutional affiliation.” (Sutton, J., dissenting). Special counsel do not employ a false name when using the Attorney General’s letterhead at his in- struction, for special counsel, as the Attorney General’s agents, act for him in debt-related matters. Far from misrepresenting special counsel’s identity, letters sent by special counsel accurately identify the office primarily responsible for collection of the debt (the Attorney Gen- eral), special counsel’s affiliation with that office, and the address (special counsel’s law firm) to which payment should be sent.6 We further note a federalism concern. “Ohio’s enforce- ment of its civil code—by collecting money owed to it—[is] a core sovereign function.” Gillie v. Law Office of Eric A. Jones, LLC, No. 14–3836 (CA6, July 14, 2015), App. to Pet. for Cert. 10a (Sutton, J., dissenting from denial of rehear- ing en banc). Ohio’s Attorney General has chosen to appoint special counsel to assist him in fulfilling his obliga- —————— 6 Because we conclude that the letters sent by petitioners were truth- ful, we need not consider the parties’ arguments as to whether a false or misleading statement must be material to violate the FDCPA, or whether a potentially false or misleading statement should be viewed from the perspective of “the least sophisticated consumer,” Brief for Respondent Gillie et al. 57, or “[t]he average consumer who has de- faulted on a debt,” Brief for Petitioners 41. 10 SHERIFF v. GILLIE Opinion of the Court tion to collect the State’s debts, and he has instructed his appointees to use his letterhead when acting on his behalf. There is no cause, in this case, to construe federal law in a manner that interferes with “States’ arrangements for conducting their own governments.” ). The Sixth Circuit’s contrary exposition is unconvincing. Use of the Attorney General’s letterhead, the Court of Appeals emphasized, has led to confusion among debtors, as the Attorney General has received phone calls inquiring whether letters sent by special counsel are authentic. 785 F.3d, at 1107. But the Sixth Circuit overlooked that the Attorney General’s prompt and invariable answer to those inquiries was “yes.” To the extent that consumers may be concerned that the letters are a “scam,” the solution is for special counsel to say more, not less, about their role as agents of the Attorney General. Special counsel’s use of the Attorney General’s letterhead, furthermore, encour- ages consumers to use official channels to ensure the legitimacy of the letters, assuaging the very concern the Sixth Circuit identified. In addition to the specter of consumer confusion, the Sixth Circuit stressed the risk of intimidation—that the Attorney General’s letterhead would “place pressure on those individuals receiving the letters” to pay their state debts. There are two bases for this concern, neither of which is persuasive. First, invocation of the Attorney General’s imprimatur could lead debtors to prioritize their debt to the State over other, private debts out of a belief that the consequences of failing to pay a state debt would be more severe. This impression is not false; the State does have enforcement powers beyond those afforded private creditors. A debtor’s tax refund, for example, “may be applied in satisfaction” of her debt, regardless of whether the State has obtained a judgment, Cite as: 578 U. S. (2016) 11 Opinion of the Court (Lexis 2013), and a debt owed to the State takes priority over most private debts in state probate proceedings, (Lexis Supp. 2015). “The special consequences of state debts explain why the Act bars debt collectors unaffiliated with a State from using the State’s name to scare debtors into paying. When the State itself is doing the demanding, however, nothing about the resulting fear misleads.” (Sutton, J., dissenting). In other words, e bars debt collectors from deceiving or misleading consumers; it does not protect consumers from fearing the actual consequences of their debts. Second, debtors might worry that the letters imply that the Attorney General, as the State’s top law enforcement official, intends to take punitive action against them. “But neither of the milquetoast letters [received by respond- ents] threatens criminal prosecution, civil penalties, or any action whatsoever.” at 1116–1117. Use of the Attorney General’s letterhead merely clarifies that the debt is owed to the State, and the Attorney General is the State’s debt collector. The FDCPA is not sensibly read to require special counsel to obscure that reality.7 * * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 7 Having determined that use of the Attorney General’s letterhead inaccurately suggested that the letters were from the Attorney Gen- eral’s Office, the Sixth Circuit remanded to the District Court for trial on whether this practice was “materially false, deceptive and mislead- ing.” 1109– 1110 (2015). But all of the relevant facts are undisputed, and the application of the FDCPA to those facts is a question of law. The District Court therefore properly granted summary judgment for defendants

Justice Rehnquist

majority

Ornelas v. United States

https://www.courtlistener.com/opinion/118030/ornelas-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118030/

1995-056

Petitioners each pleaded guilty to possession of cocaine with intent to distribute. They reserved their right to appeal the District Court's denial of their motion to suppress the cocaine found in their car. The District Court had found reasonable suspicion to stop and question petitioners as they entered their car, and probable cause to remove one of the interior panels where a package containing two kilograms of cocaine was found. The Court of Appeals opined that the findings of reasonable suspicion to stop, and probable cause to search, should be reviewed "deferentially," and "for clear error." We hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo. The facts are not disputed. In the early morning of a December day in 1992, Detective Michael Pautz, a 20-year veteran of the Milwaukee County Sheriff's Department with 2 years specializing in drug enforcement, was conducting drug-interdiction surveillance in downtown Milwaukee. *692 Pautz noticed a 1981 two-door Oldsmobile with California license plates in a motel parking lot. The car attracted Pautz's attention for two reasons: because older model, twodoor General Motors cars are a favorite with drug couriers because it is easy to hide things in them; and because California is a "source State" for drugs. Detective Pautz radioed his dispatcher to inquire about the car's registration. The dispatcher informed Pautz that the owner was either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California; Pautz was unsure which name the dispatcher gave. Detective Pautz checked the motel registry and learned that an Ismael Ornelas accompanied by a second man had registered at 4 a.m., without reservations. Pautz called for his partner, Donald Hurrle, a detective with approximately 25 years of law enforcement experience, assigned for the past 6 years to the drug enforcement unit. When Hurrle arrived at the scene, the officers contacted the local office of the Drug Enforcement Administration (DEA) and asked DEA personnel to run the names Miguel Ledesma Ornelas and Ismael Ornelas through the Narcotics and Dangerous Drugs Information System (NADDIS), a federal database of known and suspected drug traffickers. Both names appeared in NADDIS. The NADDIS report identified Miguel Ledesma Ornelas as a heroin dealer from El Centro, California, and Ismael Ornelas, Jr., as a cocaine dealer from Tucson, Arizona. The officers then summoned Deputy Luedke and the department's drug-sniffing dog, Merlin. Upon their arrival, Detective Pautz left for another assignment. Detective Hurrle informed Luedke of what they knew and together they waited. Sometime later, petitioners emerged from the motel and got into the Oldsmobile. Detective Hurrle approached the car, identified himself as a police officer, and inquired whether they had any illegal drugs or contraband. Petitioners answered "No." Hurrle then asked for identification and was given two California driver's licenses bearing the names *693 Saul Ornelas and Ismael Ornelas. Hurrle asked them if he could search the car and petitioners consented. The men appeared calm, but Ismael was shaking somewhat. Deputy Luedke, who over the past nine years had searched approximately 2,000 cars for narcotics, searched the Oldsmobile's interior. He noticed that a panel above the right rear passenger armrest felt somewhat loose and suspected that the panel might have been removed and contraband hidden inside. Luedke would testify later that a screw in the doorjam adjacent to the loose panel was rusty, which to him meant that the screw had been removed at some time. Luedke dismantled the panel and discovered two kilograms of cocaine. Petitioners were arrested. Petitioners filed pretrial motions to suppress, alleging that the police officers violated their Fourth Amendment rights when the officers detained them in the parking lot and when Deputy Luedke searched inside the panel without a warrant.[1] The Government conceded in the court below that when the officers approached petitioners in the parking lot, a reasonable person would not have felt free to leave, so the encounter was an investigatory stop. See 16 F.3d 714, 716 (CA7 1994). An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion, Terry v. Ohio, 392 U.S. 1 (1968), and a warrantless search of a car is valid if based on probable cause, California v. Acevedo, 500 U.S. 565, 569-570 (1991). *694 After conducting an evidentiary hearing, the Magistrate Judge concluded that the circumstances gave the officers reasonable suspicion, but not probable cause. The Magistrate found, as a finding of fact, that there was no rust on the screw and hence concluded that Deputy Luedke had an insufficient basis to conclude that drugs would be found within the panel. The Magistrate nonetheless recommended that the District Court deny the suppression motions because he thought, given the presence of the drug-sniffing dog, that the officers would have found the cocaine by lawful means eventually and therefore the drugs were admissible under the inevitable discovery doctrine. See Nix v. Williams, 467 U.S. 431 (1984). The District Court adopted the Magistrate's recommendation with respect to reasonable suspicion, but not its reasoning as to probable cause. The District Court thought that the model, age, and source-State origin of the car, and the fact that two men traveling together checked into a motel at 4 o'clock in the morning without reservations, formed a drug-courier profile and that this profile together with the NADDIS reports gave rise to reasonable suspicion of drugtrafficking activity; in the court's view, reasonable suspicion became probable cause when Deputy Luedke found the loose panel. Accordingly, the court ruled that the cocaine need not be excluded.[2] The Court of Appeals reviewed deferentially the District Court's determinations of reasonable suspicion and probable cause; it would reverse only upon a finding of "clear error."[3]*695 16 F. 3d, at 719. The court found no clear error in the reasonable-suspicion analysis and affirmed that determination. Ibid. With respect to the probable-cause finding, however, the court remanded the case for a determination on whether Luedke was credible when testifying about the loose panel. Id., at 721-722. On remand, the Magistrate Judge expressly found the testimony credible. The District Court accepted the finding, and once again ruled that probable cause supported the search. The Seventh Circuit held that determination not clearly erroneous. Judgt. order reported at 52 F.3d 328 (1995). We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review. 516 U.S. 963 (1996).[4] Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are commonsense, nontechnical conceptions that deal with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); see United States v. Sokolow, 490 U.S. 1, 7-8 (1989). As such, the standards are "not readily, or even usefully, reduced to a neat set of legal *696 rules." Gates, supra, at 232. We have described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U.S. 411, 417-418 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176; Gates, supra, at 238. We have cautioned that these two legal principles are not "finely-tuned standards," comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. Gates, supra, at 235. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. Gates, supra, at 232; Brinegar, supra, at 175 ("The standard of proof [for probable cause] is . . . correlative to what must be proved"); Ker v. California, 374 U.S. 23, 33 (1963) ("This Cour[t] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application"; "[e]ach case is to be decided on its own facts and circumstances" (internal quotation marks omitted)); Terry v. Ohio, 392 U. S., at 29 (the limitations imposed by the Fourth Amendment "will have to be developed in the concrete factual circumstances of individual cases"). The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: "[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another *697 way, whether the rule of law as applied to the established facts is or is not violated." Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19 (1982). We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. See, e. g., Brinegar, supra (rejecting District Court's conclusion that the police lacked probable cause); Alabama v. White, 496 U.S. 325 (1990) (conducting independent review and finding reasonable suspicion). A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Brinegar, supra, at 171. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable. In addition, the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify, the legal principles. See Miller v. Fenton, 474 U.S. 104, 114 (1985) (where the "relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact's conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law"). Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined "`set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of *698 law enforcement.' " New York v. Belton, 453 U.S. 454, 458 (1981); see also Thompson v. Keohane, 516 U.S. 99, 115 (1995) ("[T]he law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law," and those effects "serve legitimate law enforcement interests"). It is true that because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, "one determination will seldom be a useful `precedent' for another," Gates, supra, at 238, n. 11. But there are exceptions. For instance, the circumstances in Brinegar , supra, and Carroll v. United States, 267 U.S. 132 (1925), were so alike that we concluded that reversing the Court of Appeals' decision in Brinegar was necessary to be faithful to Carroll. Brinegar, supra, at 178 ("Nor . . . can we find in the present facts any substantial basis for distinguishing this case from the Carroll case"). We likewise recognized the similarity of facts in United States v. Sokolow, supra, and Florida v. Royer, 460 U.S. 491 (1983) (in both cases, the defendant traveled under an assumed name; paid for an airline ticket in cash with a number of small bills; traveled from Miami, a source city for illicit drugs; and appeared nervous in the airport). The same was true both in United States v. Ross, 456 U.S. 798 (1982), and California v. Acevedo, 500 U.S. 565 (1991), see id. , at 572 ("The facts in this case closely resemble the facts in Ross "); and in United States v. Mendenhall, 446 U.S. 544 (1980), and Reid v. Georgia, 448 U.S. 438 (1980), see id. , at 443 (Powell, J., concurring) ("facts [in Mendenhall ] [are] remarkably similar to those in the present case"). And even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject. The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the "`great deference' " paid when reviewing a decision to issue a warrant, see Illi- *699 nois v. Gates, 462 U.S. 213 (1983). See United States v. Spears, 965 F.2d 262, 269-271 (CA7 1992). We cannot agree. The Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant," Gates, supra, at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probablecause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive. We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference. For example, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in December in Milwaukee. That city is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan blocks any further eastward progress. And while the city's salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December. Milwaukee's average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Californian stopping in Milwaukee in December is either there *700 to transact business or to visit family or friends. The background facts, though rarely the subject of explicit findings, inform the judge's assessment of the historical facts. In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e. g., United States v. Ortiz, 422 U.S. 891, 897 (1975). To a layman the sort of loose panel below the back seat armrest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court's finding that the officer was credible and the inference was reasonable. We vacate the judgments and remand the case to the Court of Appeals to review de novo the District Court's determinations that the officer had reasonable suspicion and probable cause in this case. It is so ordered.

Petitioners each pleaded guilty to possession of cocaine with intent to distribute. They reserved their right to appeal the District Court's denial of their motion to suppress the cocaine found in their car. The District Court had found reasonable suspicion to stop and question petitioners as they entered their car, and probable cause to remove one of the interior panels where a package containing two kilograms of cocaine was found. The Court of Appeals opined that the findings of reasonable suspicion to stop, and probable cause to search, should be reviewed "deferentially," and "for clear error." We hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo. The facts are not disputed. In the early morning of a December day in Detective Michael Pautz, a 20-year veteran of the Milwaukee County Sheriff's Department with 2 years specializing in drug enforcement, was conducting drug-interdiction surveillance in downtown Milwaukee. *692 Pautz noticed a 1981 two-door Oldsmobile with California license plates in a motel parking lot. The car attracted Pautz's attention for two reasons: because older model, twodoor General Motors cars are a favorite with drug couriers because it is easy to hide things in them; and because California is a "source State" for drugs. Detective Pautz radioed his dispatcher to inquire about the car's registration. The dispatcher informed Pautz that the owner was either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California; Pautz was unsure which name the dispatcher gave. Detective Pautz checked the motel registry and learned that an Ismael Ornelas accompanied by a second man had registered at 4 a.m., without reservations. Pautz called for his partner, Donald Hurrle, a detective with approximately 25 years of law enforcement experience, assigned for the past 6 years to the drug enforcement unit. When Hurrle arrived at the scene, the officers contacted the local office of the Drug Enforcement Administration (DEA) and asked DEA personnel to run the names Miguel Ledesma Ornelas and Ismael Ornelas through the Narcotics and Dangerous Drugs Information System (NADDIS), a federal database of known and suspected drug traffickers. Both names appeared in NADDIS. The NADDIS report identified Miguel Ledesma Ornelas as a heroin dealer from El Centro, California, and Ismael Ornelas, Jr., as a cocaine dealer from Tucson, Arizona. The officers then summoned Deputy Luedke and the department's drug-sniffing dog, Merlin. Upon their arrival, Detective Pautz left for another assignment. Detective Hurrle informed Luedke of what they knew and together they waited. Sometime later, petitioners emerged from the motel and got into the Oldsmobile. Detective Hurrle approached the car, identified himself as a police officer, and inquired whether they had any illegal drugs or contraband. Petitioners answered "No." Hurrle then asked for identification and was given two California driver's licenses bearing the names *693 Saul Ornelas and Ismael Ornelas. Hurrle asked them if he could search the car and petitioners consented. The men appeared calm, but Ismael was shaking somewhat. Deputy Luedke, who over the past nine years had searched approximately 2,000 cars for narcotics, searched the Oldsmobile's interior. He noticed that a panel above the right rear passenger armrest felt somewhat loose and suspected that the panel might have been removed and contraband hidden inside. Luedke would testify later that a screw in the doorjam adjacent to the loose panel was rusty, which to him meant that the screw had been removed at some time. Luedke dismantled the panel and discovered two kilograms of cocaine. Petitioners were arrested. Petitioners filed pretrial motions to suppress, alleging that the police officers violated their Fourth Amendment rights when the officers detained them in the parking lot and when Deputy Luedke searched inside the panel without a warrant.[1] The Government conceded in the court below that when the officers approached petitioners in the parking lot, a reasonable person would not have felt free to leave, so the encounter was an investigatory stop. See An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion, and a warrantless search of a car is valid if based on probable cause, *694 After conducting an evidentiary hearing, the Magistrate Judge concluded that the circumstances gave the officers reasonable suspicion, but not probable cause. The Magistrate found, as a finding of fact, that there was no rust on the screw and hence concluded that Deputy Luedke had an insufficient basis to conclude that drugs would be found within the panel. The Magistrate nonetheless recommended that the District Court deny the suppression motions because he thought, given the presence of the drug-sniffing dog, that the officers would have found the cocaine by lawful means eventually and therefore the drugs were admissible under the inevitable discovery doctrine. See The District Court adopted the Magistrate's recommendation with respect to reasonable suspicion, but not its reasoning as to probable cause. The District Court thought that the model, age, and source-State origin of the car, and the fact that two men traveling together checked into a motel at 4 o'clock in the morning without reservations, formed a drug-courier profile and that this profile together with the NADDIS reports gave rise to reasonable suspicion of drugtrafficking activity; in the court's view, reasonable suspicion became probable cause when Deputy Luedke found the loose panel. Accordingly, the court ruled that the cocaine need not be excluded.[2] The Court of Appeals reviewed deferentially the District Court's determinations of reasonable suspicion and probable cause; it would reverse only upon a finding of "clear error."[3]* The court found no clear error in the reasonable-suspicion analysis and affirmed that determination. With respect to the probable-cause finding, however, the court remanded the case for a determination on whether Luedke was credible when testifying about the loose panel. On remand, the Magistrate Judge expressly found the testimony credible. The District Court accepted the finding, and once again ruled that probable cause supported the search. The Seventh Circuit held that determination not clearly erroneous. Judgt. order reported at We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review.[4] Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are commonsense, nontechnical conceptions that deal with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " ; see United As such, the standards are "not readily, or even usefully, reduced to a neat set of legal *696 rules." We have described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, United and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see at -176; We have cautioned that these two legal principles are not "finely-tuned standards," comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. ; at ; ; The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: "[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another *697 way, whether the rule of law as applied to the established facts is or is not violated." We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. See, e. g., ; A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable. In addition, the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify, the legal principles. See (where the "relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact's conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law"). Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined "`set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of *698 law enforcement.' " New ; see also It is true that because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, "one determination will seldom be a useful `precedent' for another," n. 11. But there are exceptions. For instance, the circumstances in and were so alike that we concluded that reversing the Court of Appeals' decision in was necessary to be faithful to Carroll. We likewise recognized the similarity of facts in United and The same was true both in United and see at 572 ("The facts in this case closely resemble the facts in Ross "); and in United and see at 443 (Powell, J., concurring) ("facts [in Mendenhall ] [are] remarkably similar to those in the present case"). And even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject. The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the "`great deference' " paid when reviewing a decision to issue a warrant, see Illi- *699 nois v. See United We cannot agree. The Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant," and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probablecause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive. We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference. For example, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in December in Milwaukee. That city is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan blocks any further eastward progress. And while the city's salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December. Milwaukee's average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Californian stopping in Milwaukee in December is either there *700 to transact business or to visit family or friends. The background facts, though rarely the subject of explicit findings, inform the judge's assessment of the historical facts. In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e. g., United To a layman the sort of loose panel below the back seat armrest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court's finding that the officer was credible and the inference was reasonable. We vacate the judgments and remand the case to the Court of Appeals to review de novo the District Court's determinations that the officer had reasonable suspicion and probable cause in this case. It is so ordered.

Justice Alito

concurring

Molina-Martinez v. United States

https://www.courtlistener.com/opinion/3195996/molina-martinez-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/3195996/

2015-031

I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable proba- bility that the District Court would have imposed a differ- ent sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sen- tencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives. I “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before the tribunal having jurisdiction to determine it.’ ” United 2 MOLINA-MARTINEZ v. UNITED STATES Opinion of ALITO, J. States v. Olano, 507 U.S. 725, 731 (1993) (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)). Consistent with this principle, Rule 52 of the Federal Rules of Crimi- nal Procedure treats defendants who preserve their claims much more favorably than those who fail to register a timely objection. When the defendant has made a timely objection to an error, the Government generally bears the burden of showing that the error was harmless. Olano, 507 U.S., at 734. By contrast, when a defendant has failed to make a timely objection, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Ibid.; see also id., at 741–742 (KENNEDY, J., concurring). This framework applies to errors in the calculation of an advisory Guidelines sentence. If the defendant does not call the error to the attention of the sentencing judge, the defendant may obtain relief on appeal only if he or she proves that the error was prejudicial—specifically, that there is a “reasonable probability” that, but for the error, the sentence would have been different. United States v. Dominguez Benitez, 542 U.S. 74, 81–83 (2004). Meeting this burden “should not be too easy for defendants.” Id., at 82. Instead, the standard should be robust enough to “enforce the policies that underpin Rule 52(b) generally, to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpre- served error.” Ibid. By placing this burden on the defend- ant, Rule 52(b) compels defense counsel to devote careful attention to the potential complexities of the Guidelines at sentencing, thus providing the district court—which “is ordinarily in the best position to determine the relevant facts and adjudicate the dispute”—with “the opportunity to consider and resolve” any objections. Puckett v. United States, 556 U.S. 129, 134 (2009); see also ibid. (“[A]ppellate-court authority to remedy” unpreserved errors “is strictly circumscribed” in order to “induce the Cite as: 578 U. S. ____ (2016) 3 Opinion of ALITO, J. timely raising of claims and objections”); United States v. Vonn, 535 U.S. 55, 73 (2002) (“[T]he value of finality requires defense counsel to be on his toes, not just the judge, and the defendant who just sits there when a mis- take can be fixed cannot just sit there when he speaks up later on”); Olano, supra, at 742–743 (KENNEDY, J., concur- ring) (“[T]he operation of Rule 52(b) does not permit a party to withhold an objection . . . and then to demand automatic reversal”). Whether a defendant can show a “reasonable probabil- ity” of a different sentence depends on the “particular facts and circumstances” of each case. United States v. Davila, 569 U. S. ___, ___–___ (2013) (slip op., at 13–14). “We have previously warned against courts’ determining whether an error is harmless through the use of manda- tory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record.” Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (citing Kotteakos v. United States, 328 U.S. 750, 760 (1946)). Instead of relying on presumptions, a court of appeals must “engage in [a] full-record assessment” to determine whether a defendant who forfeited a claim of Guidelines error has met his case-specific burden of show- ing of prejudice. Davila, supra, at ___ (slip op., at 14). The answer may be affected by a variety of factors, includ- ing any direct evidence, the nature and magnitude of the error, the sentencing judge’s view of the Guidelines,1 the —————— 1 See, e.g., United States Sentencing Commission, Report on the Con- tinuing Impact of United States v. Booker on Federal Sentencing 3 (2012) (Booker Report) (“[T]he Commission’s analysis of individual judge data showed that the identity of the judge has played an increas- ingly important role in the sentencing outcomes in many districts”); Bowman, Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines, 51 Houston L. Rev. 1227, 1266 (2014) (“Inter- Judge Disparity Has . . . Increased Since Booker”); Scott, Inter-Judge Sentencing Disparity After Booker: A First Look, 63 Stan. L. Rev. 1, 30 (2010) (“[I]n their guideline sentencing patterns, judges have responded 4 MOLINA-MARTINEZ v. UNITED STATES Opinion of ALITO, J. approach of the circuit in question,2 and the particular crime at issue.3 Under the specific circumstances here, Molina-Martinez met his burden. As the Court points out, Molina-Martinez demonstrated that the Guidelines “were the focal point for the proceedings”; that “[t]he 77-month sentence the Dis- trict Court selected is conspicuous for its position as the lowest sentence within what the District Court believed to be the applicable range”; and that “the District Court’s selection of a sentence at the bottom of the range, despite the Government’s request for the maximum Guidelines sentence, ‘evinced an intention . . . to give the minimum recommended by the Guidelines.’ ” Ante, at 13. This evidence establishes a “reasonable probability that the District Court would have imposed a different sentence had it known that 70 months was in fact the lowest sen- tence the Commission deemed appropriate.” Ibid. In concluding otherwise, the Fifth Circuit applied exactly the sort of strict, categorical rule against which we have warned. Under the Fifth Circuit’s approach, Molina- Martinez could not satisfy his burden with circumstantial evidence regarding the parties’ sentencing arguments or the District Court’s selection of a sentence at the very bottom of the range. See 588 Fed. Appx. 333, 335 (CA5 —————— in starkly different ways to Booker, with some following a ‘free at last’ pattern and others a ‘business as usual’ pattern”). 2 See, e.g., Booker Report 6 (“The influence of the guidelines . . . has varied by circuit”); Bowman, supra, at 1261 (“Different Districts Have Had Very Different Post-Booker Experiences”); Yang, Have Interjudge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker, 89 N. Y. U. L. Rev. 1268, 1277, 1319–1323 (2014) (presenting “evidence of substantial interdistrict differences in sentencing outcomes”). 3 See, e.g., Booker Report 5 (“The influence of the guidelines . . . has generally remained stable in drug trafficking, firearms, and immigra- tion offenses, but has diminished in fraud and child pornography offenses”). Cite as: 578 U. S. ____ (2016) 5 Opinion of ALITO, J. 2014) (per curiam). Rather, the Fifth Circuit would re- quire a defendant to produce direct evidence, such as an “explicit statement suggesting that the Guidelines range was a primary factor in sentencing.” Ibid. But there is no good reason to preclude defendants from showing preju- dice via the type of circumstantial evidence at issue here. As this case illustrates, the manner in which a district court applies an incorrect Guidelines range can itself serve as evidence of an effect on substantial rights. I thus con- cur in the Court’s opinion insofar as it rejects the Fifth Circuit’s misguided approach and finds that Molina- Martinez demonstrated a reasonable probability of a different sentence absent the Guidelines error. II I cannot, however, join the Court’s dicta speculating that “most” defendants who forfeit a Guidelines error will be able to show a reasonable probability of prejudice. Ante, at 9, 11, 15. Things may turn out that way, but I see no reason to prejudge an empirical question that is unnec- essary to our decision in this case and that will be worked out by the lower courts on a case-by-case basis.4 —————— 4 Some of the Court’s dicta could perhaps be interpreted not as predic- tions, but as instructions to lower courts to side with the forfeiting defendant unless the Government can point to “unusual circum- stances.” See ante, at 11–12 (“[I]n the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received there- under. Absent unusual circumstances, he will not be required to show more”). For several reasons, however, I do not think the opinion can be fairly viewed as requiring such a result. First, the Court makes clear that today’s decision does not shift the burden of persuasion from a forfeiting defendant to the Government. See ante, at 14 (Under Rule 52(b), “ ‘[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice,’ ” and “[t]he holding here does not” shift the burden). Second, the opinion acknowledges that a “court’s reliance on an incorrect range” will not always “suffice to show an effect on the defendant’s substantial rights”—even where “the 6 MOLINA-MARTINEZ v. UNITED STATES Opinion of ALITO, J. The Court’s proclamations about what will occur in “most” cases are based on Sentencing Commission statis- tics indicating that the Guidelines tend to influence sen- tences. See ante, at 10. Perhaps these statistics are pro- bative of the Guidelines’ current impact on sentencing. But they provide an unstable and shifting basis for the Court’s prophecies about the future. The Guidelines are now entirely advisory, see United States v. Booker, 543 U.S. 220, 245 (2005), and in time the lower courts may increasingly drift away from the Guidelines and back toward the sentencing regime that prevailed prior to their issuance.5 As circumstances change, and as judges who —————— record is silent as to what the district court might have done had it considered the correct Guidelines range.” Ante, at 11. It follows that even where the Government fails to identify any direct evidence of harmlessness, the defendant cannot automatically satisfy his burden simply by pointing to the application of an incorrect Guidelines range. Instead of employing a strict presumption against the Government, the Court emphasizes, “a reviewing court must consider the facts and circumstances of the case before it.” Ibid.; see also ibid. (“ ‘Our essen- tial point is that particular facts and circumstances matter’ ” (quoting United States v. Davila, 569 U. S. ___, ___ (2013) (slip op., at 13))). Given these caveats, I do not read the Court’s opinion as replacing the Fifth Circuit’s inflexible pro-Government presumption with an equally inflexible pro-defendant presumption. Rather, I take the Court at its word: “The decision today simply states that courts reviewing sentenc- ing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range.” Ante, at 14. 5 See, e.g., Assessing Booker and Its Aftermath, Practice Under the Federal Sentencing Guidelines §1.02(C)(1), pp. 1–14 to 1–16 (D. Debold ed., 5th ed. 2016) (Debold) (“Since the first weeks after Booker, district courts have been engaged in a dynamic debate over the precise weight to be given the now advisory Guidelines,” and “there are reasons to expect continued evolution in sentencing norms”); id., §1.02(C)(2) (“[D]istrict courts can be expected to continue to test the boundaries of their discretion. . . . Accordingly, while it is clear that district courts now enjoy more discretion at sentencing, the proper bounds of that discretion will continue to be explored”). Cite as: 578 U. S. ____ (2016) 7 Opinion of ALITO, J. spent decades applying mandatory Guidelines ranges are replaced with new judges less wedded to the Guidelines, the statistics underlying the Court’s forecasts may change dramatically.6 Because I cannot join the Court’s question- able predictions, I concur only in part and in the judgment. —————— 6 See, e.g., Yang, 89 N. Y. U. L. Rev., at 1277 (finding that “Judges who have no prior experience sentencing under the mandatory Guide- lines regime are more likely to depart from the Guidelines- recommended range than their pre-Booker counterparts, suggesting that newer judges are less anchored to the Guidelines”); id., at 1318– 1319 (“The ‘anchor’ effect of the Guidelines sentence may be more prominent for pre-Booker appointees because these judges are more acculturated to and experienced with constraining their sentences to the dictates of the Guidelines. In contrast, the ‘anchor’ effect is less prominent for post-Booker appointees. These potential anchoring differences . . . may ‘increase as the years go by and the bench is filled with individuals who have no history with binding guidelines’ ”); see also, e.g., Debold §1.02(C)(1), at 1–16 (“Sentencing judges, particularly more recent appointees, are also growing increasingly skeptical of the Guidelines as they become more comfortable viewing the Guidelines as advice and look deeper into the reasoning supporting (or failing to support) the Guidelines’ recommendations”); Gertner, Supporting Advisory Guidelines, 3 Harv. L. & Pol’y Rev. 261, 270 (2009) (describing continued Guideline sentencing as the result of “the habits ingrained during twenty years of mandatory Guideline sentencing”); Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discre- tion, 117 Yale L. J. 1420, 1496–1497 (2008) (“[A]s a new generation of prosecutors and judges enters into service, the pendulum may swing back toward the local exercise of informed discretion, if Booker lasts that long. But incumbent sentencing decision makers may be reluctant to regard as unreasonable the sentences they were obliged to seek and impose for two decades under the command and the conceit of law”)

I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable proba- bility that the District Court would have imposed a differ- ent sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sen- tencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives. I “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before the tribunal having jurisdiction to determine it.’ ” United 2 MOLINA-MARTINEZ v. UNITED STATES Opinion of ALITO, J. ). Consistent with this principle, Rule 52 of the Federal Rules of Crimi- nal Procedure treats defendants who preserve their claims much more favorably than those who fail to register a timely objection. When the defendant has made a timely objection to an error, the Government generally bears the burden of showing that the error was harmless. By contrast, when a defendant has failed to make a timely objection, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” ; see also at 741–742 (KENNEDY, J., concurring). This framework applies to errors in the calculation of an advisory Guidelines sentence. If the defendant does not call the error to the attention of the sentencing judge, the defendant may obtain relief on appeal only if he or she proves that the error was prejudicial—specifically, that there is a “reasonable probability” that, but for the error, the sentence would have been different. United States v. Dominguez Benitez, Meeting this burden “should not be too easy for defendants.” at 82. Instead, the standard should be robust enough to “enforce the policies that underpin Rule 52(b) generally, to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpre- served error.” By placing this burden on the defend- ant, Rule 52(b) compels defense counsel to devote careful attention to the potential complexities of the Guidelines at sentencing, thus providing the district court—which “is ordinarily in the best position to determine the relevant facts and adjudicate the dispute”—with “the opportunity to consider and resolve” any objections. ; see also (“[A]ppellate-court authority to remedy” unpreserved errors “is strictly circumscribed” in order to “induce the Cite as: 578 U. S. (2016) 3 Opinion of ALITO, J. timely raising of claims and objections”); United States v. Vonn, (“[T]he value of finality requires defense counsel to be on his toes, not just the judge, and the defendant who just sits there when a mis- take can be fixed cannot just sit there when he speaks up later on”); at 742–743 (KENNEDY, J., concur- ring) (“[T]he operation of Rule 52(b) does not permit a party to withhold an objection and then to demand automatic reversal”). Whether a defendant can show a “reasonable probabil- ity” of a different sentence depends on the “particular facts and circumstances” of each case. United States v. 569 U. S. – (2013) (slip op., at 13–14). “We have previously warned against courts’ determining whether an error is harmless through the use of manda- tory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record.” (citing (1946)). Instead of relying on presumptions, a court of appeals must “engage in [a] full-record assessment” to determine whether a defendant who forfeited a claim of Guidelines error has met his case-specific burden of show- ing of prejudice. at (slip op., at 14). The answer may be affected by a variety of factors, includ- ing any direct evidence, the nature and magnitude of the error, the sentencing judge’s view of the Guidelines,1 the —————— 1 See, e.g., United States Sentencing Commission, Report on the Con- tinuing Impact of United States v. Booker on Federal Sentencing 3 (2012) (Booker Report) (“[T]he Commission’s analysis of individual judge data showed that the identity of the judge has played an increas- ingly important role in the sentencing outcomes in many districts”); Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines, 51 Houston L. Rev. 1227, 1266 (2014) (“Inter- Judge Disparity Has Increased Since Booker”); Scott, Inter-Judge Sentencing Disparity After Booker: A First Look, (2010) (“[I]n their guideline sentencing patterns, judges have responded 4 MOLINA-MARTINEZ v. UNITED STATES Opinion of ALITO, J. approach of the circuit in question,2 and the particular crime at issue.3 Under the specific circumstances here, Molina-Martinez met his burden. As the Court points out, Molina-Martinez demonstrated that the Guidelines “were the focal point for the proceedings”; that “[t]he 77-month sentence the Dis- trict Court selected is conspicuous for its position as the lowest sentence within what the District Court believed to be the applicable range”; and that “the District Court’s selection of a sentence at the bottom of the range, despite the Government’s request for the maximum Guidelines sentence, ‘evinced an intention to give the minimum recommended by the Guidelines.’ ” Ante, at 13. This evidence establishes a “reasonable probability that the District Court would have imposed a different sentence had it known that 70 months was in fact the lowest sen- tence the Commission deemed appropriate.” In concluding otherwise, the Fifth Circuit applied exactly the sort of strict, categorical rule against which we have warned. Under the Fifth Circuit’s approach, Molina- Martinez could not satisfy his burden with circumstantial evidence regarding the parties’ sentencing arguments or the District Court’s selection of a sentence at the very bottom of the range. See (CA5 —————— in starkly different ways to Booker, with some following a ‘free at last’ pattern and others a ‘business as usual’ pattern”). 2 See, e.g., Booker Report 6 (“The influence of the guidelines has varied by circuit”); (“Different Districts Have Had Very Different Post-Booker Experiences”); Yang, Have Interjudge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker, 89 N. Y. U. L. Rev. 1268, 1277, 1319–1323 (2014) (presenting “evidence of substantial interdistrict differences in sentencing outcomes”). 3 See, e.g., Booker Report 5 (“The influence of the guidelines has generally remained stable in drug trafficking, firearms, and immigra- tion offenses, but has diminished in fraud and child pornography offenses”). Cite as: 578 U. S. (2016) 5 Opinion of ALITO, J. 2014) (per curiam). Rather, the Fifth Circuit would re- quire a defendant to produce direct evidence, such as an “explicit statement suggesting that the Guidelines range was a primary factor in sentencing.” But there is no good reason to preclude defendants from showing preju- dice via the type of circumstantial evidence at issue here. As this case illustrates, the manner in which a district court applies an incorrect Guidelines range can itself serve as evidence of an effect on substantial rights. I thus con- cur in the Court’s opinion insofar as it rejects the Fifth Circuit’s misguided approach and finds that Molina- Martinez demonstrated a reasonable probability of a different sentence absent the Guidelines error. II I cannot, however, join the Court’s dicta speculating that “most” defendants who forfeit a Guidelines error will be able to show a reasonable probability of prejudice. Ante, at 9, 11, 15. Things may turn out that way, but I see no reason to prejudge an empirical question that is unnec- essary to our decision in this case and that will be worked out by the lower courts on a case-by-case basis.4 —————— 4 Some of the Court’s dicta could perhaps be interpreted not as predic- tions, but as instructions to lower courts to side with the forfeiting defendant unless the Government can point to “unusual circum- stances.” See ante, at 11–12 (“[I]n the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received there- under. Absent unusual circumstances, he will not be required to show more”). For several reasons, however, I do not think the opinion can be fairly viewed as requiring such a result. First, the Court makes clear that today’s decision does not shift the burden of persuasion from a forfeiting defendant to the Government. See ante, at 14 (Under Rule 52(b), “ ‘[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice,’ ” and “[t]he holding here does not” shift the burden). Second, the opinion acknowledges that a “court’s reliance on an incorrect range” will not always “suffice to show an effect on the defendant’s substantial rights”—even where “the 6 MOLINA-MARTINEZ v. UNITED STATES Opinion of ALITO, J. The Court’s proclamations about what will occur in “most” cases are based on Sentencing Commission statis- tics indicating that the Guidelines tend to influence sen- tences. See ante, at 10. Perhaps these statistics are pro- bative of the Guidelines’ current impact on sentencing. But they provide an unstable and shifting basis for the Court’s prophecies about the future. The Guidelines are now entirely advisory, see United States v. Booker, 543 U.S. 220, 245 (2005), and in time the lower courts may increasingly drift away from the Guidelines and back toward the sentencing regime that prevailed prior to their issuance.5 As circumstances change, and as judges who —————— record is silent as to what the district court might have done had it considered the correct Guidelines range.” Ante, at 11. It follows that even where the Government fails to identify any direct evidence of harmlessness, the defendant cannot automatically satisfy his burden simply by pointing to the application of an incorrect Guidelines range. Instead of employing a strict presumption against the Government, the Court emphasizes, “a reviewing court must consider the facts and circumstances of the case before it.” ; see also (“ ‘Our essen- tial point is that particular facts and circumstances matter’ ” (quoting United States v. 569 U. S. (2013) (slip op., at 13))). Given these caveats, I do not read the Court’s opinion as replacing the Fifth Circuit’s inflexible pro-Government presumption with an equally inflexible pro-defendant presumption. Rather, I take the Court at its word: “The decision today simply states that courts reviewing sentenc- ing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range.” Ante, at 14. 5 See, e.g., Assessing Booker and Its Aftermath, Practice Under the Federal Sentencing Guidelines pp. 1–14 to 1–16 (D. Debold ed., 5th ed. 2016) (Debold) (“Since the first weeks after Booker, district courts have been engaged in a dynamic debate over the precise weight to be given the now advisory Guidelines,” and “there are reasons to expect continued evolution in sentencing norms”); (“[D]istrict courts can be expected to continue to test the boundaries of their discretion. Accordingly, while it is clear that district courts now enjoy more discretion at sentencing, the proper bounds of that discretion will continue to be explored”). Cite as: 578 U. S. (2016) 7 Opinion of ALITO, J. spent decades applying mandatory Guidelines ranges are replaced with new judges less wedded to the Guidelines, the statistics underlying the Court’s forecasts may change dramatically.6 Because I cannot join the Court’s question- able predictions, I concur only in part and in the judgment. —————— 6 See, e.g., Yang, 89 N. Y. U. L. Rev., at 1277 (finding that “Judges who have no prior experience sentencing under the mandatory Guide- lines regime are more likely to depart from the Guidelines- recommended range than their pre-Booker counterparts, suggesting that newer judges are less anchored to the Guidelines”); at 1318– 1319 (“The ‘anchor’ effect of the Guidelines sentence may be more prominent for pre-Booker appointees because these judges are more acculturated to and experienced with constraining their sentences to the dictates of the Guidelines. In contrast, the ‘anchor’ effect is less prominent for post-Booker appointees. These potential anchoring differences may ‘increase as the years go by and the bench is filled with individuals who have no history with binding guidelines’ ”); see also, e.g., Debold at 1–16 (“Sentencing judges, particularly more recent appointees, are also growing increasingly skeptical of the Guidelines as they become more comfortable viewing the Guidelines as advice and look deeper into the reasoning supporting (or failing to support) the Guidelines’ recommendations”); Gertner, Supporting Advisory Guidelines, 3 Harv. L. & Pol’y Rev. 261, 270 (describing continued Guideline sentencing as the result of “the habits ingrained during twenty years of mandatory Guideline sentencing”); Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discre- tion, 117 Yale L. J. 1420, 1496–1497 (2008) (“[A]s a new generation of prosecutors and judges enters into service, the pendulum may swing back toward the local exercise of informed discretion, if Booker lasts that long. But incumbent sentencing decision makers may be reluctant to regard as unreasonable the sentences they were obliged to seek and impose for two decades under the command and the conceit of law”)

Justice White

majority

Oklahoma v. New Mexico

https://www.courtlistener.com/opinion/112624/oklahoma-v-new-mexico/

https://www.courtlistener.com/api/rest/v3/clusters/112624/

1990-106

This case, an original action brought by the States of Oklahoma and Texas against the State of New Mexico, arises out of a dispute over the interpretation of various provisions of the Canadian River Compact (Compact), which was ratified by New Mexico, Oklahoma, and Texas in 1951 and consented to by Congress by the Act of May 17, 1952, 66 Stat. 74. Each State has filed exceptions to a report submitted by the Special Master (Report) appointed by this Court. *224 I The Canadian River[1] is an interstate river which rises along the boundary between southeastern Colorado and northeastern New Mexico, in the vicinity of Raton, New Mexico. From its headwaters, the Canadian River flows south to the Conchas Dam in New Mexico, then generally east for 65 river miles to the Ute Reservoir in New Mexico, and then into the Texas Panhandle. After traversing the panhandle, the river flows into Oklahoma where it eventually empties into the Arkansas River, a tributary of the Mississippi. In the late 1930's, Congress authorized, and the Corps of Engineers completed, the construction of Conchas Dam on the mainstream of the Canadian River, approximately 30 miles northwest of Tucumcari, New Mexico. Congress also authorized the Tucumcari project, a federal reclamation project designed to irrigate over 42,000 acres of land and serve the municipal and industrial needs of Tucumcari, New Mexico. The project lands are situated southeast of Conchas Dam and are served by the Conchas Canal, which diverts water from Conchas Reservoir. The project was completed in 1950. In 1949, the Texas congressional delegation proposed that Congress authorize a massive Canadian River reclamation project, known as the Sanford project because of its proximity to Sanford, Texas, for the purpose of serving the municipal and industrial requirements of 11 Texas cities in the Texas Panhandle region. Legislation to authorize the Sanford project was introduced in the House of Representatives, along with a bill authorizing New Mexico, Oklahoma, and Texas to negotiate an interstate compact to equitably apportion *225 the waters of the Canadian River. The legislation authorizing the States to enter into an interstate compact was passed by Congress, and the Canadian River Compact Commission was created. The Compact Commission consisted of one commissioner from each State and one federal representative. Each commissioner and the federal representative had the assistance of engineering advisers, a group collectively known as the Engineering Advisory Committee. This committee submitted several proposals to the Compact Commission. The final draft of the Canadian River Compact was presented on December 6, 1950, and was signed on that day by the members of the Compact Commission.[2] *226 Congress enacted legislation authorizing the Sanford project on December 29, 1950, but as a result of an amendment proposed by the New Mexico delegation, the bill specifically provided that actual construction of the project could not commence until Congress consented to the Compact. See 64 Stat. 1124, 43 U.S. C. § 600c(b). That consent was granted on May 17, 1952, 66 Stat. 74, and the Sanford Dam, creating Lake Meredith Reservoir with a capacity of over 1.4 million acre-feet of water, was completed in 1964. Lake Meredith is approximately 165 river miles east of Ute Reservoir and is located north of Amarillo, Texas. During the 1950's, New Mexico selected a site on the Canadian River mainstream approximately 1 mile west of Logan, New Mexico, and about 45 miles downstream from Conchas Dam for the construction of Ute Dam and Reservoir. Construction of Ute Dam was completed in 1963, with an initial storage capacity of 109,600 acre-feet. In 1982, New Mexico began construction to enlarge the reservoir, and, in 1984, the enlargement was completed, giving Ute Reservoir a capacity of 272,800 acre-feet. In 1984, the reservoir's actual capacity to store water was 246,617 acre-feet, the remaining capacity being occupied by silt. The Special Master estimated that because of additional silting, reservoir storage capacity was reduced to 241,700 acre-feet in 1987 and currently is about 237,900 acre-feet. Report of Special Master 16-17. *227 As early as 1982, Oklahoma and Texas expressed concern that the enlargement of Ute Reservoir would violate the 200,000 acre-feet limitation in Article IV(b) of the Compact. See n. 2, supra. All attempts by the Commission to resolve this budding dispute were unsuccessful, in large part because any Commission action requires a unanimous vote and New Mexico would not agree to the interpretation of the Compact proposed by Oklahoma and Texas. This litigation followed, with Oklahoma and Texas contending that Article IV(b) of the Compact imposes a 200,000 acre-feet limit on New Mexico's constructed reservoir capacity available for conservation storage downstream from Conchas Dam, and that capacity for the so-called "desilting pool" portion of Ute Reservoir was not exempt from the Article IV(b) limitation because it was not allocated solely to "sediment control." In the spring of 1987, while the case was pending, the portion of the Canadian River above Conchas Dam flooded, and a sizeable quantity of water, approximately 250,000 acre-feet, spilled over Conchas Dam. This was the first major spill over Conchas Dam since 1941-1942, a spill which predated the Compact. New Mexico caught approximately 60 percent of the spill in Ute Reservoir, which filled the reservoir to its capacity, and the remaining 40 percent flowed on down the river. As of June 23, 1988, Ute Reservoir contained approximately 232,000 acre-feet of stored water, of which some 180,900 acre-feet was alleged by New Mexico to be flood water spilled from Conchas Dam earlier in 1987. Report of Special Master 47. After New Mexico refused to count the spill waters stored in Ute Reservoir for purposes of the 200,000 acre-feet limitation in Article IV(b), Texas and Oklahoma filed a supplemental complaint in this case, claiming that if the 200,000 acre-feet limitation applies to actual stored water, then water spilling over Conchas Dam or seeping back from the Tucumcari project constitutes "waters which originate . . . below Conchas Dam" within the meaning of Article IV(b). New *228 Mexico disputed all of these contentions and argued that water which first enters the river above Conchas Dam is not subject to the Article IV(b) limitation even if it is stored in Ute Reservoir, or anywhere else in New Mexico below Conchas Dam. We referred Texas' and Oklahoma's complaint and supplemental complaint in this original case to a Special Master. 484 U.S. 1023 (1988); 488 U.S. 989 (1988). After considering voluminous evidence, the written submissions of the States, twice hearing extended oral argument on the issues, and circulating a draft report to the States for their comments, the Master filed a Report on October 15, 1990, making the following recommendations relevant to our decision in this case: (1) Article IV(b) imposes a limitation on stored water, not physical reservoir capacity. (2) Waters originating in the Canadian River Basin above Conchas Dam, but reaching the mainstream of the Canadian River below Conchas Dam as a result of spills or releases from Conchas Dam or seepage and return flow from the Tucumcari project, are subject to the Article IV(b) limitation. (3) The issue whether, and to what extent, the water in the "desilting pool" in Ute Reservoir should be exempt from the Article IV(b) limitation should be referred to the Canadian River Compact Commission for good-faith negotiations and possible resolution. The referral would be without prejudice to later invoke the Court's jurisdiction if the issue cannot be resolved within one year. (4) If the foregoing recommendations are approved, New Mexico will have been in violation of Article IV(b) of the Compact since 1987, and the case should be returned to the Special Master for determination of any injury to Oklahoma and Texas and recommendations for appropriate relief. Report, at 24-25. The Master also recommended that the Court use this case to articulate various jurisdictional prerequisites and procedural *229 guidelines for application in future interstate compact litigation. Id., at 26-34.[3] We ordered the Master's Report to be filed and set a briefing schedule, 498 U.S. 956 (1990), and heard oral argument on the States' exceptions to the Master's Report. We now address those exceptions in turn. II Oklahoma has filed an exception to the Master's recommendation in Part VI of his Report that the Article IV(b) limitation on "conservation storage" be interpreted to apply only to the quantity of water New Mexico actually stores at Ute Reservoir for conservation purposes. As of 1984, Ute Reservoir had a storage capacity of approximately 272,800 acre-feet, although it is conceded that not all of that capacity is chargeable as existing for "conservation storage." Some of the capacity is for purposes excluded from the Compact definition of "conservation storage," such as for sediment control. Oklahoma contends that the term "conservation storage" should be interpreted to apply to the physical capacity of reservoirs located below Conchas Dam, a view which, if adopted, would result in a finding that New Mexico has been in violation of Article IV(b) since at least 1984, when the enlargement of Ute Reservoir was completed. The Special Master conceded, as do we, that Oklahoma's suggested interpretation of Article IV(b)'s conservation storage limitation finds some support in the plain language of the Compact definition of "conservation storage" and in the language of Article IV(b) itself. The Compact defines "conservation storage" in pertinent part as "that portion of the capacity of reservoirs available for the storage of water" for various purposes and "excludes any portion of the capacity of *230 reservoirs" allocated to other purposes. Art. II(d) (emphasis added). Likewise, Article IV(b) refers to "the amount of conservation storage in New Mexico available for impounding these waters." (Emphasis added.) However, other provisions in the Compact appear to focus on stored water, not reservoir capacity. For example, Article V sets forth an elaborate formula for determining the amount of water Texas may actually impound at any one time; Article VII provides that the "Commission may permit New Mexico to impound more water than the amount set forth in Article IV" (emphasis added); and Article VIII requires each State to "furnish to the Commission at intervals designated by the Commission accurate records of the quantities of water stored in reservoirs pertinent to the administration of this Compact." (Emphasis added.) We agree with the Special Master that nothing on the face of the Compact indicates a clear intention to treat the New Mexico "conservation storage" limitation differently from the Texas stored water limitation, and we see no compelling justification for doing so. In fact, several early drafts of the Compact uniformly referred to stored water, and only in the final draft did the "conservation storage" language appear in Article IV(b). There is nothing in the contemporaneous memoranda and statements of the Compact Commissioners and their staffs to explain exactly why this change was made; nor is there anything which indicates an intent to draw a distinction between the limitations placed on New Mexico and those placed on Texas. Rather, as the Master pointed out, it is most probable that the terms "stored water," "storage," and "conservation storage capacity" were being used loosely and interchangeably by the drafters and their staffs. See Report, at 42-43. There is no obvious reason why Texas and Oklahoma would have wanted to restrict New Mexico's ability to increase reservoir capacity below Conchas Dam, particularly in light of the fact that larger reservoirs actually promote one of the *231 purposes stated in Article I of the Compact, which is to capture and conserve as much of the Canadian River's flood flows as possible, flows which might otherwise be dissipated and therefore wasted. Furthermore, as New Mexico points out, sedimentation alone would constantly reduce New Mexico's storage capacity below the 200,000 acre-feet limit, forcing New Mexico to repeatedly either build new reservoir capacity or enlarge existing reservoirs. Either of those options would be extremely expensive, and Oklahoma points to no persuasive evidence that the drafters of the Compact intended that New Mexico should bear such a burden. We overrule Oklahoma's exception to Part VI of the Master's Report. III New Mexico has excepted to Part VII of the Master's Report, in which the Master recommended that water spilling or released from Conchas Dam, as well as return flow and seepage from the Tucumcari project, be subject to Article IV(b)'s 200,000 acre-feet limitation on conservation storage, if the water is impounded in Ute Dam or other downstream dams in New Mexico. New Mexico argues that the Compact does not impose any restriction on New Mexico's impoundment of these waters because they originate above Conchas Dam, and Article IV(a) gives New Mexico the "free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam." (Emphasis added.) Texas and Oklahoma counter that the word "originating," as used in Article IV of the Compact, simply means "entering." See Tr. of Oral Arg. 29. In Texas' and Oklahoma's view, all the conservation storage waters which end up in Ute Reservoir, whether they spill over or are released through Conchas Dam, or seep back from the Tucumcari project, are subject to the 200,000 acre-feet conservation storage limitation of Article IV(b) because they "originate" below Conchas Dam. The Special Master recommended that such waters be subject to the Article IV(b) limitation because he concluded that *232 the intent of the Compact drafters was to give New Mexico free and unrestricted use of waters originating in the Canadian River drainage basin above Conchas Dam only if the waters were "stored, used or diverted for use at or above Conchas Dam." Report, at 59. New Mexico asserts that the word "originating" as used in Article IV has a plain, unambiguous meaning and that the waters "originating" below Conchas Dam referred to in Article IV(b) do not include any waters "originating" above Conchas. But we do not agree that the meaning of the word is as plain as New Mexico suggests. As the Special Master pointed out, a literal reading of the language of Article IV(a) could not have been intended since such a reading would include all of the waters originating in the drainage basin of the Canadian River above Conchas Dam, including all of the waters in tributaries that arise in Colorado, such as the Vermejo River, and would purport to foreclose any claim that Colorado had in the waters arising in that State. This would be an extremely implausible reading in light of the fact that Colorado was not a party to the Compact. New Mexico's answer is that the language of Article IV(a), giving it the right to all Canadian River waters originating above Conchas, does not mean what it says and should be interpreted to include only those waters in the drainage basin "originating" in New Mexico, a limitation that appeared in earlier drafts of the Compact and that was reflected in the legislative history of the Act approving the Compact. S. Rep. No. 1192, 82d Cong., 2d Sess., 2 (1952). But as Texas points out, New Mexico nevertheless claims the right to use and store all of the water in the Canadian River that is found in New Mexico above Conchas Dam, even though some of it admittedly has its source in Colorado, not in New Mexico, a result unsupported by New Mexico's present interpretation of the language in Article IV(a). Likewise, if literally read, Article IV(a) would retain New Mexico's right to water having a source above Conchas even if the water escaped its *233 grasp and flowed into Texas; but New Mexico concedes that the Article does not go so far, if for no other reason than the fact that Article V gives Texas the right to all of the water found in the Canadian River in Texas, subject to a storage limitation. In light of the above ambiguity, which the dissent refuses to recognize, it is fairly arguable that if, by virtue of its right to water originating in the drainage basin in New Mexico above Conchas Dam, New Mexico also has the right to use and store water in the Canadian River in New Mexico that originated in Colorado, Article IV(b) should be construed in the same way: Any water found in the river below Conchas, including spills, seepage, and return flow from Tucumcari, must be deemed to have originated below Conchas and be subject to the 200,000 acre-feet storage limitation. In effect, this was the conclusion the Special Master came to after examining in detail the purpose and negotiating history of the Compact.[4] *234 The Master reviewed considerable evidence regarding the drafters' intent as to the meaning of Article IV and concluded that New Mexico's suggested interpretation was not consistent *235 with the available evidence.[5] Although the question is not free from doubt, we agree with the Master. Contrary to New Mexico's assertions, there is substantial evidence that, in drafting the Compact, Texas and Oklahoma agreed that storage limitations were not necessary for waters above Conchas Dam because the waters in that basin had been fully developed. "[T]he negotiators recognized that full development had already been made of all waters of Canadian River originating above Conchas Dam and that accordingly there *236 would be no purpose in placing a limitation upon any increase in the amount of storage of such waters." Joint Statement of Agreed Material Facts D.34. The evidence strongly suggests that the negotiators believed that any future water development along the Canadian River in New Mexico would necessarily occur below Conchas Dam, and that 200,000 acre-feet of storage rights would be ample for New Mexico's purposes below Conchas Dam. Indeed, in a letter to the Governor, New Mexico's Compact Commissioner, John Bliss, specifically stated that "storage capacity for all projects which may be feasible below Conchas will probably not equal the 200,000 acre foot storage limit."[6] Plaintiffs' Exh. 30, p. 1. *237 The central purpose of the Compact was to settle the respective rights of the States to Canadian River water; and the Compact and its negotiating history plainly show that the parties agreed that no more than 200,000 acre-feet of storage rights would satisfy all of New Mexico's future needs for water below Conchas Dam. Had they thought more was needed, the limit would have been higher. Under these circumstances, we see no persuasive reason why Texas and Oklahoma would have agreed to let New Mexico impound substantially more than 200,000 acre-feet of water for conservation storage purposes below Conchas Dam simply because some of the water first entered the river above Conchas Dam. Nor do we believe that the evidence supports the conclusion that New Mexico's negotiator intended that result either. In our view, the Compact's ambiguous use of the term "originating" can only be harmonized with the apparent intent of the Compact drafters if it is interpreted so that waters which spill over or are released from Conchas Dam, or which return from the Tucumcari project, are considered waters originating below Conchas Dam. This view is strengthened by the fact that both the Bureau of Reclamation in studying the Sanford project, and the engineers advising the Compact commissioners during negotiations, included outflows and spills from Conchas Dam in their estimates of the water supply available to Texas.[7] See Joint Statement of Agreed Material *238 Facts C.7, D.16. New Mexico points out that the States and the Master agree that nothing in Article IV would prevent New Mexico from simply enlarging Conchas Reservoir to capture all of the waters flowing into the river above Conchas Dam. See Tr. of Oral Arg. 6. That reading of the Compact is correct, but we fail to see how it refutes Texas' and Oklahoma's interpretation of the Compact. New Mexico apparently has never attempted to enlarge Conchas Reservoir because doing so is economically infeasible, and there is nothing in the evidence to suggest that the drafters contemplated that New Mexico would seek to enlarge Conchas Reservoir in the future. Instead, as noted above, the Compact drafters were operating on the assumption that New Mexico had fully developed its uses of water above Conchas Dam and would not need additional water for above Conchas uses. It does not necessarily follow that New Mexico's entitlement under Article IV(a) to all of the Canadian River water it can use from Conchas Reservoir gives New Mexico the unrestricted right to store that water at any point downstream from Conchas Dam. Any right New Mexico has to water spilling over Conchas Dam arises by virtue of Article IV(b), under which New Mexico may store for its use 200,000 acre-feet of water originating below Conchas Dam.[8] *239 It is worth noting the Special Master's observation that New Mexico's construction of Article IV, if accepted, would have a deleterious impact on the water supply to the Sanford project and hence would "run counter to the Congressional intention in conditioning funding of the Sanford Project on execution of the Compact and in subsequently approving the Compact." Report, at 57. Congress had been informed that the project would rely in part on water arriving in Texas in the mainstream of the Canadian. Yet New Mexico's version of the Compact would, as a practical matter, permit it to prevent any and all water entering the river above Conchas from ever reaching Texas, whether by enlarging Ute Reservoir or building additional facilities, and at the same time to impound at Ute Dam most if not all of the principal tributary inflow below Conchas. All of New Mexico's needs for water above Conchas and for the Tucumcari project are fully satisfied. No one suggests otherwise. It is also plain that it was agreed in the Compact that 200,000 acre-feet of water storage would be adequate to satisfy New Mexico's needs for water below Conchas. That allocation was indeed generous. Since the signing of the Compact, there have been no developments in the area below Conchas which require substantial amounts of water for consumptive uses. According to the Special Master, slightly over 1,000 acre-feet for such purposes has been sold from Ute Dam since 1963. Id., at 68. New Mexico is entitled to 200,000 acre-feet of conservation storage below Conchas Dam, which the Compact anticipated would take care of any future developments in the area below Conchas Dam. As we construe the Compact, if New Mexico has at any time stored more than that amount, it was not entitled to do so. Any water stored in excess of that amount should have been *240 allowed to flow through the Ute Dam, to be put to use by the downstream States, rather than impounded in New Mexico. Accordingly, we overrule New Mexico's exceptions to Part VII of the Report.[9] IV In Part VIII of his Report, the Master recommended that this Court remand to the Canadian River Commission the question whether certain water stored in Ute Reservoir, water which New Mexico has designated a "desilting pool,"[10] is exempt from the Article IV(b) limitation on New Mexico's conservation storage because it allegedly serves a "sediment control" purpose within the meaning of Article II(d). Oklahoma and Texas except to this recommendation, arguing that there is sufficient evidence in the record to make a final determination on this issue, that the water in the desilting pool should be counted towards the Article IV(b) limitation, and that it is neither appropriate nor practical to refer the *241 matter to the Commission. The Master acknowledged that the record developed in this case probably was sufficient to permit him to decide this issue, Report, at 99-100, but he declined to address it until after the States had first made some attempt, via the Canadian River Commission, to negotiate a settlement. We sustain Texas' and Oklahoma's exception to Part VIII of the Master's Report insofar as those States argue that the matter should not be referred to the Commission. "Where the States themselves are before this Court for the determination of a controversy between them, neither can determine their rights inter sese, and this Court must pass upon every question essential to such a determination . . . ." Kentucky v. Indiana, 281 U.S. 163, 176-177 (1930). It is true that the Court has "often expressed [a] preference that, where possible, States settle their controversies by `mutual accommodation and agreement,'" Arizona v. California, 373 U.S. 546, 564 (1963) (quoting Colorado v. Kansas, 320 U.S. 383, 392 (1943), and Nebraska v. Wyoming, 325 U.S. 589, 616 (1945)), but the Court "does have a serious responsibility to adjudicate cases where there are actual, existing controversies" between the States over the waters in interstate streams. 373 U.S., at 564. There is no doubt that such a dispute exists in this case, Oklahoma and Texas have properly invoked this Court's jurisdiction, and there is no claim that the "desilting pool" issue has not been properly presented. Thus, we see no legal basis for the Master refusing to decide the question and instead sending it to the Commission. Thus, we remand the "desilting pool" question to the Master for such further proceedings as may be necessary and a recommendation on the merits.[11] *242 V The States' exceptions to the Special Master's Report are overruled except for Oklahoma's and Texas' challenge to the Master's recommendation that the "desilting pool" issue be referred to the Canadian River Commission, which is sustained in part.[12] The case is remanded to the Master for such further proceedings and recommendations as may be necessary. So ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR, JUSTICE SCALIA, and JUSTICE KENNEDY join, concurring in part and dissenting in part. An interstate compact, though provided for in the Constitution, and ratified by Congress, is nonetheless essentially a contract between the signatory States. The Court's opinion *243 overruling New Mexico's objections to the Report of the Special Master varies the terms of a contract to which the States of Oklahoma, New Mexico, and Texas freely agreed. I do not believe it is within the Court's power to do this, and I therefore dissent from Part III of the Court's opinion, which restricts New Mexico's use of waters that spill over Conchas Dam. I concur in Parts I, II, and IV of the Court's opinion. The Canadian River traverses three States. It originates in the high country of northern New Mexico, flowing southeast from there into the Texas Panhandle. New Mexico has erected two dams on the river, Conchas Dam and Ute Dam, which provide irrigation water for farming and municipal water for the city of Tucumcari, New Mexico. In Texas, the Sanford project diverts water to serve the municipal and industrial requirements of Texas cities throughout the Texas Panhandle region, from Amarillo to Lubbock. The river flows eastward from this project across the Texas Panhandle and into Oklahoma, and thence southeasterly throughout almost the entire State of Oklahoma until it joins the Arkansas River in the Eufala Reservoir a few miles west of Fort Smith, Arkansas. In 1950, New Mexico, Texas, and Oklahoma convened to draft the Canadian River Compact (Compact), which apportioned the Canadian's waters in a manner that they hoped would serve New Mexico's and Texas' already substantial needs while anticipating the future needs of those States and Oklahoma. Article IV of the Compact, which governs the allocation of water to New Mexico, provides as follows: "(a) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam. "(b) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River in New Mexico below Conchas Dam, provided that the amount of conservation storage in New Mexico available for impounding these waters which originate in *244 the drainage basin of Canadian River below Conchas Dam shall be limited to an aggregate of two hundred thousand (200,000) acre-feet." 66 Stat. 75. I part company with the majority's interpretation of this Article, based on my view that this provision means what it says. By its express terms, Article IV places no restrictions on New Mexico's use of waters originating above Conchas Dam. It imposes only two restrictions on its use of the waters originating in the drainage basin of the Canadian River below Conchas Dam: First, New Mexico's enjoyment of these lower-basin waters is restricted to waters located in New Mexico; second, New Mexico may allocate no more than 200,000 acre-feet of its total storage capacity for the conservation of these lower basin waters. The Compact thus distinguishes between water "originating" in the lower basin and water "originating" at or above the upper basin. New Mexico enjoys free and unrestricted use of the latter. The ordinary understanding of what it means for waters to "originate" in a basin is that they "arise" or "com[e] into existence" in that location. See 10 Oxford English Dictionary 935-936 (2d ed. 1989). Thus, according to the plain meaning of Article IV(a), New Mexico may make unrestricted use of the Canadian River waters that arise above Conchas Dam. These waters may be stored, used, or diverted for use without limitation. Unlike the waters that enter the Canadian River below Conchas Dam, these waters may pass into the lower basin without being subject to the 200,000 acre-feet conservation storage restriction of Article IV(b). Despite the clear import of the Compact's terms, the Court concludes that the Compact cannot mean what it says, and instead fashions a different allocation than that which is literally described. The Court concludes that "the intent of the Compact drafters was to give New Mexico free and unrestricted use of waters originating in the Canadian River drainage basin above Conchas Dam only if the waters were *245 `stored, used or diverted for use at or above Conchas Dam.'" Ante, at 232 (quoting Report of Special Master 59) (emphasis in original). The emphasized terms do not appear anywhere in the Compact, and reflect not the intent of the parties, but instead the intent that the Court now imputes to them. Although the Compact grants New Mexico use of "all" waters originating above Conchas Dam, the Court reads this to mean "some": specifically excluding water that eventually winds up below Conchas Dam. Ante, at 232-233. Accordingly, the Court holds that any water found in the river below Conchas, including spills and seepage from above Conchas Dam, is not subject to free and unrestricted use — even though it clearly originated above Conchas Dam. A compact is a contract among its parties. Texas v. New Mexico, 482 U.S. 124, 128 (1987). Congressional consent elevates an interstate compact into a law of the United States, yet it remains a contract which is subject to normal rules of enforcement and construction. Thus, "unless the compact to which Congress has consented is somehow unconstitutional, no court may order relief inconsistent with its express terms." Texas v. New Mexico, 462 U.S. 554, 564 (1983). Accordingly, where the terms of the compact are unambiguous, this Court must give effect to the express mandate of the signatory States. The Court asserts that we may rewrite the express terms of Article IV(a) because of its understanding of the practical consequences of faithfully applying that provision. Ante, at 230-232. The Court contends that, if taken at its word, the Compact would permit New Mexico to lay claim to any water originating above Conchas Dam, including tributaries that arise in Colorado. The Court further asserts that a literal interpretation would permit New Mexico to then chase this water down and continue to claim access to it as it passes down through Texas and Oklahoma. Based on its view that the Compact could not have been drafted to produce the implausible consequence that New Mexico could appropriate *246 Colorado's, Texas', and Oklahoma's waters, the Court abandons the literal text of the Compact and casts off in search of a new interpretation of the word "originating." Ante, at 232. The Court's approach conjures up impractical consequences where none exist. The language of the Compact does not in any way support the notion that Colorado (a State that did not even participate in the Compact) might forfeit its waters to New Mexico. Colorado's rights are not implicated by the Compact at all. Although a small portion of the Canadian River's waters arise in Colorado, only New Mexico, Texas, and Oklahoma participated in the Compact and are parties to it. By its terms, the Compact allocates only those rights over the interstate waters of the Canadian River belonging to those three States. See Art. X. Thus, the Compact could not, and did not purport to, allocate Colorado's portion of the Canadian River. Any dispute between Colorado and the signatory States to this Compact must be resolved outside the terms of the Compact, and there is no reason to construe this Compact as though it purported to deal with Colorado's claims. Similarly, Article V of the Compact dispels any concern that New Mexico's rights under a literal reading of Article IV(a) extend to waters originating above Conchas Dam that have left the State. That provision gives Texas "free and unrestricted use of all waters of [the] Canadian River in Texas," subject to certain storage limitations. The Compact gives New Mexico no rights to recapture errant water that reaches Texas because that water is then "in" Texas and therefore subject to Texas' rights under the Compact. The majority's failure to reconcile Article V with Article IV violates the ordinary rule of statutory and contract interpretation that all provisions of a Compact must be read together in a meaningful manner. See United States v. Utah, Nevada & California Stage Co., 199 U.S. 414, 423 (1905). *247 Had the Compact's drafters intended to limit New Mexico's free and unrestricted use of the Canadian River waters originating above Conchas Dam in the manner announced today, they would certainly have done so more directly. For example, they might have drafted Article IV(a) to provide that "the amount of conservation storage in New Mexico below Conchas Dam shall be limited to an aggregate of 200,000 acre-feet." But they did not. Instead, they specifically agreed that only waters "which originate in the drainage basin of [the] Canadian River below Conchas Dam" were to be so restricted. The only reasonable conclusion to draw from this is that they intended the word "originating" to have some content. The Court's free-form exploration of the practical consequences of the parties' agreement, and its reliance on evidence outside of the Compact to introduce ambiguity into Compact terms, is both contrary to our precedents and unfair to the parties. When parties to a contract have expressed their intent on a matter in unambiguous terms, we should not substitute our will for their purpose. Texas v. New Mexico, supra, at 564. The parties made an agreement, and have acted in reliance upon the terms of that contract and settled principles of contract law. The contract law principles of all three States disallow recourse to evidence outside the record under these circumstances. In those jurisdictions, where the language of an agreement clearly expresses the intent of the parties, courts may not rely on extrinsic evidence to vary its terms. See, e. g., Mercury Investment Co. v. F. W. Woolworth Co., 706 P.2d 523, 529 (Okla. 1985); Hobbs Trailers v. J. T. Arnett Grain Co., 560 S.W.2d 85, 87 (Tex. 1977); Trujillo v. CS Cattle Co., 109 N. M. 705, 709-710, 790 P.2d 502, 506-507 (1990). Even viewed as a federal statute, the Court's treatment of the Compact's plain language is improper. Congress gave its blessing to this Compact and, in doing so, codified the agreement as federal law. As we stated in Arizona v. California, 373 U.S. 546, 565-566 *248 (1963): "Where Congress has . . . exercised its constitutional power over waters, courts have no power to substitute their own notions of an `equitable apportionment' for the apportionment chosen by Congress." Even if I agreed with the Court that it is appropriate in this case to look outside the Compact to determine the meaning of Article IV(a), I would not agree with its conclusion that the parties intended to include overflow waters from the upper basin of Conchas Dam within the term "waters which originate in the drainage basin of Canadian River below Conchas Dam." I do not find either piece of evidence relied upon by the Court to be supportive of that position, let alone persuasive. The Court says that the Compact negotiators did not place any limitation on the amount of storage of waters originating above Conchas Dam because they believed that those waters were already being fully used. Accordingly, the Court reasons, the negotiators assumed that any future development of the river's waters in New Mexico would necessarily occur only below Conchas Dam, and that 200,000 acre-feet of storage rights would be more than sufficient to satisfy those development needs. Ante, at 236. The Court concludes that "these circumstances," demonstrate that Texas and Oklahoma could not have intended to permit New Mexico to impound any more than the 200,000 acre-feet of water for conservation storage purposes below Conchas Dam. Ante, at 237. As a preliminary matter, the record simply does not bear out the Court's view. The only evidence that directly addresses the issue establishes that the 200,000 acre-feet limitation was derived solely from New Mexico's perceived requirements for Canadian River waters originating in the lower basin. The "Hill memorandum," authored by Raymond Hill, Chairman of the Engineering Advisory Committee, and approved by the Compact Commission at its final meeting on January 31, 1951, stated that the storage limitation *249 was directed only towards impoundment of "the flood flows of Ute Creek and other minor tributaries of Canadian River entering the stream below Conchas Dam and above any contemplated storage works on Canadian River in Texas." Plaintiff's Exh. 38, p. 3 (emphasis added). The storage limits thus appear to have been directed at waters entering New Mexico below Conchas Dam but before the river enters Texas. Indeed, a letter from New Mexico's Commissioner, John Bliss, to Senator Anderson of New Mexico, written the day after the Compact was signed, expressly noted that the 200,000 acre-feet limitation did not apply to spills. Plaintiff's Exh. 28. By contrast, there is no direct support whatsoever for the Court's statement that the Compact's 200,000 acre-feet limitation on lower basin waters was intended to apply to upper basin waters captured in the lower basin. Even assuming that the Court's view of the facts is correct, I do not see how these facts support its conclusion. The Court observes that at the time of the Compact, New Mexico had fully developed reliable supplies of water above Conchas Reservoir, and thus there would be no purpose in placing a limitation upon any increase in the amount of storage of those waters. The Engineering Advisory Committee determined that "above Conchas, the available water supply has all been put to use — any further development above Conchas would deplete the supply available for Tucumcari Project; thus future developments would emphasize the better utilization of existing supplies." Plaintiff's Exh. 109, p. 1. This assessment, on its face, refers to the usage of normal water flows and not to the specific issue raised in this case, overflows and spills. In asserting that further development of the upper basin would draw on Tucumcari project waters, the engineer advisers did not contemplate spill waters or return flows from Tucumcari. As the Special Master himself concluded: "The most that can be said about the Engineer Advisors' treatment of Conchas spills is that they apparently did not *250 project that they would recur with the frequency and magnitude that they subsequently have." Report of Special Master 67 (emphasis added). The Court also relies on the fact that a 1960 study by the Bureau of Reclamation included outflows from Conchas Dam in estimating water supply to Sanford Reservoir, Texas. See Plaintiff's Exh. 102, pp. 64, 67, 70-71. This too has no bearing on the intent of the parties to this Compact, or the meaning of Article IV. The Bureau published the final draft of its report nearly a decade after the Compact was signed. The Bureau's report simply acknowledges that in light of the massive spills over Conchas Dam that occurred in 1941 and 1942, it might be reasonable to assume that occasional spills might contribute to the Sanford project's water supply. This conclusion does not favor one view or another about New Mexico's right to capture some of the overflow from Conchas Dam, since it is clear that New Mexico was physically incapable of capturing all of the overflow from the massive floods that have occurred twice this century. The Bureau's estimates merely reflect reality; they do not suggest that the Compact requires waters flowing from Conchas spills to serve the Sanford project alone. Finally, putting aside the Court's dismissive treatment of the Compact terms and the parties' expectations, today's decision makes little practical sense. The Court's decision will not protect the rights of the downstream States, except to the extent that it will force New Mexico to behave inefficiently in using its water. Oklahoma and Texas do not dispute that New Mexico could, if it desired, enlarge the reservoir behind Conchas Dam to capture all of the Canadian River's waters and dry up the river beds of the downstream States. Tr. of Oral Arg. 29, 33-34; ante, at 238. The Court also acknowledges that the Compact gives New Mexico the included right to capture additional waters at or above Conchas and then divert them to downstream locations. See ante, at 242, n. 12. The Court's construction, therefore, does *251 not prevent New Mexico from capturing flood waters and diverting them to projects below Conchas Dam; it merely forces the State to take its rightful waters by means of costly, inefficient, and wasteful engineering. The Canadian is an unpredictable river: For the first 36 years of the Compact it lay dormant before it boiled over Conchas Dam, spilling several hundred thousand acre-feet of water into the lower basin. The Compact allocated this water. New Mexico was entitled to keep as much as it wished in modest storage facilities to recapture its upper basin waters. All the rest would naturally flow down to Texas and Oklahoma. The Court today rewrites that simple allocation. While rivers such as the Canadian may be unpredictable, interpretation of contracts involving those rivers should not be. The Court frustrates settled expectations by rewriting the Compact to mean something other than what its language says. Accordingly, I dissent from Part III of the Court's decision.

This case, an original action brought by the States of Oklahoma and Texas against the State of New arises out of a dispute over the interpretation of various provisions of the Canadian River Compact (Compact), which was ratified by New Oklahoma, and Texas in 1951 and consented to by Congress by the Act of May 17, 195, Each State has filed exceptions to a report submitted by the Special Master (Report) appointed by this Court. *4 I The Canadian River[1] is an interstate river which rises along the boundary between southeastern Colorado and northeastern New in the vicinity of Raton, New From its headwaters, the Canadian River flows south to the Conchas Dam in New then generally east for 65 river miles to the Ute Reservoir in New and then into the Texas Panhandle. After traversing the panhandle, the river flows into Oklahoma where it eventually empties into the Arkansas River, a tributary of the Mississippi. In the late 1930's, Congress authorized, and the Corps of Engineers completed, the construction of Conchas Dam on the mainstream of the Canadian River, approximately 30 miles northwest of Tucumcari, New Congress also authorized the Tucumcari project, a federal reclamation project designed to irrigate over 4,000 acres of land and serve the municipal and industrial needs of Tucumcari, New The project lands are situated southeast of Conchas Dam and are served by the Conchas Canal, which diverts water from Conchas Reservoir. The project was completed in 1950. In 1949, the Texas congressional delegation proposed that Congress authorize a massive Canadian River reclamation project, known as the Sanford project because of its proximity to Sanford, Texas, for the purpose of serving the municipal and industrial requirements of 11 Texas cities in the Texas Panhandle region. Legislation to authorize the Sanford project was introduced in the House of Representatives, along with a bill authorizing New Oklahoma, and Texas to negotiate an interstate compact to equitably apportion *5 the waters of the Canadian River. The legislation authorizing the States to enter into an interstate compact was passed by Congress, and the Canadian River Compact Commission was created. The Compact Commission consisted of one commissioner from each State and one federal representative. Each commissioner and the federal representative had the assistance of engineering advisers, a group collectively known as the Engineering Advisory Committee. This committee submitted several proposals to the Compact Commission. The final draft of the Canadian River Compact was presented on December 6, 1950, and was signed on that day by the members of the Compact Commission.[] *6 Congress enacted legislation authorizing the Sanford project on December 9, 1950, but as a result of an amendment proposed by the New delegation, the bill specifically provided that actual construction of the project could not commence until Congress consented to the Compact. See 43 U.S. C. 600c(b). That consent was granted on May 17, 195, and the Sanford Dam, creating Lake Meredith Reservoir with a capacity of over 1.4 million acre-feet of water, was completed in 1964. Lake Meredith is approximately 165 river miles east of Ute Reservoir and is located north of Amarillo, Texas. During the 1950's, New selected a site on the Canadian River mainstream approximately 1 mile west of Logan, New and about 45 miles downstream from Conchas Dam for the construction of Ute Dam and Reservoir. Construction of Ute Dam was completed in 1963, with an initial storage capacity of 109,600 acre-feet. In 198, New began construction to enlarge the reservoir, and, in 1984, the enlargement was completed, giving Ute Reservoir a capacity of 7,800 acre-feet. In 1984, the reservoir's actual capacity to store water was 46,617 acre-feet, the remaining capacity being occupied by silt. The Special Master estimated that because of additional silting, reservoir storage capacity was reduced to 41,700 acre-feet in 19 and currently is about 37,900 acre-feet. Report of Special Master 16-17. *7 As early as 198, Oklahoma and Texas expressed concern that the enlargement of Ute Reservoir would violate the 00,000 acre-feet limitation in Article IV(b) of the Compact. See n. All attempts by the Commission to resolve this budding dispute were unsuccessful, in large part because any Commission action requires a unanimous vote and New would not agree to the interpretation of the Compact proposed by Oklahoma and Texas. This litigation followed, with Oklahoma and Texas contending that Article IV(b) of the Compact imposes a 00,000 acre-feet limit on New 's constructed reservoir capacity available for conservation storage downstream from Conchas Dam, and that capacity for the so-called "desilting pool" portion of Ute Reservoir was not exempt from the Article IV(b) limitation because it was not allocated solely to "sediment control." In the spring of 19, while the case was pending, the portion of the Canadian River above Conchas Dam flooded, and a sizeable quantity of water, approximately 50,000 acre-feet, spilled over Conchas Dam. This was the first major spill over Conchas Dam since 1941-194, a spill which predated the Compact. New caught approximately 60 percent of the spill in Ute Reservoir, which filled the reservoir to its capacity, and the remaining 40 percent flowed on down the river. As of June 3, 1988, Ute Reservoir contained approximately 3,000 acre-feet of stored water, of which some 180,900 acre-feet was alleged by New to be flood water spilled from Conchas Dam earlier in 19. Report of Special Master 47. After New refused to count the spill waters stored in Ute Reservoir for purposes of the 00,000 acre-feet limitation in Article IV(b), Texas and Oklahoma filed a supplemental complaint in this case, claiming that if the 00,000 acre-feet limitation applies to actual stored water, then water spilling over Conchas Dam or seeping back from the Tucumcari project constitutes "waters which originate below Conchas Dam" within the meaning of Article IV(b). New *8 disputed all of these contentions and argued that water which first enters the river above Conchas Dam is not subject to the Article IV(b) limitation even if it is stored in Ute Reservoir, or anywhere else in New below Conchas Dam. We referred Texas' and Oklahoma's complaint and supplemental complaint in this original case to a Special Master. 484 U.S. 103 ; After considering voluminous evidence, the written submissions of the States, twice hearing extended oral argument on the issues, and circulating a draft report to the States for their comments, the Master filed a Report on October 15, making the following recommendations relevant to our decision in this case: (1) Article IV(b) imposes a limitation on stored water, not physical reservoir capacity. () Waters originating in the Canadian River Basin above Conchas Dam, but reaching the mainstream of the Canadian River below Conchas Dam as a result of spills or releases from Conchas Dam or seepage and return flow from the Tucumcari project, are subject to the Article IV(b) limitation. (3) The issue whether, and to what extent, the water in the "desilting pool" in Ute Reservoir should be exempt from the Article IV(b) limitation should be referred to the Canadian River Compact Commission for good-faith negotiations and possible resolution. The referral would be without prejudice to later invoke the Court's jurisdiction if the issue cannot be resolved within one year. (4) If the foregoing recommendations are approved, New will have been in violation of Article IV(b) of the Compact since 19, and the case should be returned to the Special Master for determination of any injury to Oklahoma and Texas and recommendations for appropriate relief. Report, at 4-5. The Master also recommended that the Court use this case to articulate various jurisdictional prerequisites and procedural *9 guidelines for application in future interstate compact litigation. at 6-34.[3] We ordered the Master's Report to be filed and set a briefing schedule, and heard oral argument on the States' exceptions to the Master's Report. We now address those exceptions in turn. II Oklahoma has filed an exception to the Master's recommendation in Part VI of his Report that the Article IV(b) limitation on "conservation storage" be interpreted to apply only to the quantity of water New actually stores at Ute Reservoir for conservation purposes. As of 1984, Ute Reservoir had a storage capacity of approximately 7,800 acre-feet, although it is conceded that not all of that capacity is chargeable as existing for "conservation storage." Some of the capacity is for purposes excluded from the Compact definition of "conservation storage," such as for sediment control. Oklahoma contends that the term "conservation storage" should be interpreted to apply to the physical capacity of reservoirs located below Conchas Dam, a view which, if adopted, would result in a finding that New has been in violation of Article IV(b) since at least 1984, when the enlargement of Ute Reservoir was completed. The Special Master conceded, as do we, that Oklahoma's suggested interpretation of Article IV(b)'s conservation storage limitation finds some support in the plain language of the Compact definition of "conservation storage" and in the language of Article IV(b) itself. The Compact defines "conservation storage" in pertinent part as "that portion of the capacity of reservoirs available for the storage of water" for various purposes and "excludes any portion of the capacity of *30 reservoirs" allocated to other purposes. Art. II(d) (emphasis added). Likewise, Article IV(b) refers to "the amount of conservation storage in New available for impounding these waters." (Emphasis added.) However, other provisions in the Compact appear to focus on stored water, not reservoir capacity. For example, Article V sets forth an elaborate formula for determining the amount of water Texas may actually impound at any one time; Article VII provides that the "Commission may permit New to impound more water than the amount set forth in Article IV" (emphasis added); and Article VIII requires each State to "furnish to the Commission at intervals designated by the Commission accurate records of the quantities of water stored in reservoirs pertinent to the administration of this Compact." (Emphasis added.) We agree with the Special Master that nothing on the face of the Compact indicates a clear intention to treat the New "conservation storage" limitation differently from the Texas stored water limitation, and we see no compelling justification for doing so. In fact, several early drafts of the Compact uniformly referred to stored water, and only in the final draft did the "conservation storage" language appear in Article IV(b). There is nothing in the contemporaneous memoranda and statements of the Compact Commissioners and their staffs to explain exactly why this change was made; nor is there anything which indicates an intent to draw a distinction between the limitations placed on New and those placed on Texas. Rather, as the Master pointed out, it is most probable that the terms "stored water," "storage," and "conservation storage capacity" were being used loosely and interchangeably by the drafters and their staffs. See Report, at 4-43. There is no obvious reason why Texas and Oklahoma would have wanted to restrict New 's ability to increase reservoir capacity below Conchas Dam, particularly in light of the fact that larger reservoirs actually promote one of the *31 purposes stated in Article I of the Compact, which is to capture and conserve as much of the Canadian River's flood flows as possible, flows which might otherwise be dissipated and therefore wasted. Furthermore, as New points out, sedimentation alone would constantly reduce New 's storage capacity below the 00,000 acre-feet limit, forcing New to repeatedly either build new reservoir capacity or enlarge existing reservoirs. Either of those options would be extremely expensive, and Oklahoma points to no persuasive evidence that the drafters of the Compact intended that New should bear such a burden. We overrule Oklahoma's exception to Part VI of the Master's Report. III New has excepted to Part VII of the Master's Report, in which the Master recommended that water spilling or released from Conchas Dam, as well as return flow and seepage from the Tucumcari project, be subject to Article IV(b)'s 00,000 acre-feet limitation on conservation storage, if the water is impounded in Ute Dam or other downstream dams in New New argues that the Compact does not impose any restriction on New 's impoundment of these waters because they originate above Conchas Dam, and Article IV(a) gives New the "free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam." (Emphasis added.) Texas and Oklahoma counter that the word "originating," as used in Article IV of the Compact, simply means "entering." See Tr. of Oral Arg. 9. In Texas' and Oklahoma's view, all the conservation storage waters which end up in Ute Reservoir, whether they spill over or are released through Conchas Dam, or seep back from the Tucumcari project, are subject to the 00,000 acre-feet conservation storage limitation of Article IV(b) because they "originate" below Conchas Dam. The Special Master recommended that such waters be subject to the Article IV(b) limitation because he concluded that *3 the intent of the Compact drafters was to give New free and unrestricted use of waters originating in the Canadian River drainage basin above Conchas Dam only if the waters were "stored, used or diverted for use at or above Conchas Dam." Report, at 59. New asserts that the word "originating" as used in Article IV has a plain, unambiguous meaning and that the waters "originating" below Conchas Dam referred to in Article IV(b) do not include any waters "originating" above Conchas. But we do not agree that the meaning of the word is as plain as New suggests. As the Special Master pointed out, a literal reading of the language of Article IV(a) could not have been intended since such a reading would include all of the waters originating in the drainage basin of the Canadian River above Conchas Dam, including all of the waters in tributaries that arise in Colorado, such as the Vermejo River, and would purport to foreclose any claim that Colorado had in the waters arising in that State. This would be an extremely implausible reading in light of the fact that Colorado was not a party to the Compact. New 's answer is that the language of Article IV(a), giving it the right to all Canadian River waters originating above Conchas, does not mean what it says and should be interpreted to include only those waters in the drainage basin "originating" in New a limitation that appeared in earlier drafts of the Compact and that was reflected in the legislative history of the Act approving the Compact. S. Rep. No. 119, 8d Cong., d Sess., (195). But as Texas points out, New nevertheless claims the right to use and store all of the water in the Canadian River that is found in New above Conchas Dam, even though some of it admittedly has its source in Colorado, not in New a result unsupported by New 's present interpretation of the language in Article IV(a). Likewise, if literally read, Article IV(a) would retain New 's right to water having a source above Conchas even if the water escaped its *33 grasp and flowed into Texas; but New concedes that the Article does not go so far, if for no other reason than the fact that Article V gives Texas the right to all of the water found in the Canadian River in Texas, subject to a storage limitation. In light of the above ambiguity, which the dissent refuses to recognize, it is fairly arguable that if, by virtue of its right to water originating in the drainage basin in New above Conchas Dam, New also has the right to use and store water in the Canadian River in New that originated in Colorado, Article IV(b) should be construed in the same way: Any water found in the river below Conchas, including spills, seepage, and return flow from Tucumcari, must be deemed to have originated below Conchas and be subject to the 00,000 acre-feet storage limitation. In effect, this was the conclusion the Special Master came to after examining in detail the purpose and negotiating history of the Compact.[4] *34 The Master reviewed considerable evidence regarding the drafters' intent as to the meaning of Article IV and concluded that New 's suggested interpretation was not consistent *35 with the available evidence.[5] Although the question is not free from doubt, we agree with the Master. Contrary to New 's assertions, there is substantial evidence that, in drafting the Compact, Texas and Oklahoma agreed that storage limitations were not necessary for waters above Conchas Dam because the waters in that basin had been fully developed. "[T]he negotiators recognized that full development had already been made of all waters of Canadian River originating above Conchas Dam and that accordingly there *36 would be no purpose in placing a limitation upon any increase in the amount of storage of such waters." Joint Statement of Agreed Material Facts D.34. The evidence strongly suggests that the negotiators believed that any future water development along the Canadian River in New would necessarily occur below Conchas Dam, and that 00,000 acre-feet of storage rights would be ample for New 's purposes below Conchas Dam. Indeed, in a letter to the Governor, New 's Compact Commissioner, John Bliss, specifically stated that "storage capacity for all projects which may be feasible below Conchas will probably not equal the 00,000 acre foot storage limit."[6] Plaintiffs' Exh. 30, p. 1. *37 The central purpose of the Compact was to settle the respective rights of the States to Canadian River water; and the Compact and its negotiating history plainly show that the parties agreed that no more than 00,000 acre-feet of storage rights would satisfy all of New 's future needs for water below Conchas Dam. Had they thought more was needed, the limit would have been higher. Under these circumstances, we see no persuasive reason why Texas and Oklahoma would have agreed to let New impound substantially more than 00,000 acre-feet of water for conservation storage purposes below Conchas Dam simply because some of the water first entered the river above Conchas Dam. Nor do we believe that the evidence supports the conclusion that New 's negotiator intended that result either. In our view, the Compact's ambiguous use of the term "originating" can only be harmonized with the apparent intent of the Compact drafters if it is interpreted so that waters which spill over or are released from Conchas Dam, or which return from the Tucumcari project, are considered waters originating below Conchas Dam. This view is strengthened by the fact that both the Bureau of Reclamation in studying the Sanford project, and the engineers advising the Compact commissioners during negotiations, included outflows and spills from Conchas Dam in their estimates of the water supply available to Texas.[7] See Joint Statement of Agreed Material *38 Facts C.7, D.16. New points out that the States and the Master agree that nothing in Article IV would prevent New from simply enlarging Conchas Reservoir to capture all of the waters flowing into the river above Conchas Dam. See Tr. of Oral Arg. 6. That reading of the Compact is correct, but we fail to see how it refutes Texas' and Oklahoma's interpretation of the Compact. New apparently has never attempted to enlarge Conchas Reservoir because doing so is economically infeasible, and there is nothing in the evidence to suggest that the drafters contemplated that New would seek to enlarge Conchas Reservoir in the future. Instead, as noted above, the Compact drafters were operating on the assumption that New had fully developed its uses of water above Conchas Dam and would not need additional water for above Conchas uses. It does not necessarily follow that New 's entitlement under Article IV(a) to all of the Canadian River water it can use from Conchas Reservoir gives New the unrestricted right to store that water at any point downstream from Conchas Dam. Any right New has to water spilling over Conchas Dam arises by virtue of Article IV(b), under which New may store for its use 00,000 acre-feet of water originating below Conchas Dam.[8] *39 It is worth noting the Special Master's observation that New 's construction of Article IV, if accepted, would have a deleterious impact on the water supply to the Sanford project and hence would "run counter to the Congressional intention in conditioning funding of the Sanford Project on execution of the Compact and in subsequently approving the Compact." Report, at 57. Congress had been informed that the project would rely in part on water arriving in Texas in the mainstream of the Canadian. Yet New 's version of the Compact would, as a practical matter, permit it to prevent any and all water entering the river above Conchas from ever reaching Texas, whether by enlarging Ute Reservoir or building additional facilities, and at the same time to impound at Ute Dam most if not all of the principal tributary inflow below Conchas. All of New 's needs for water above Conchas and for the Tucumcari project are fully satisfied. No one suggests otherwise. It is also plain that it was agreed in the Compact that 00,000 acre-feet of water storage would be adequate to satisfy New 's needs for water below Conchas. That allocation was indeed generous. Since the signing of the Compact, there have been no developments in the area below Conchas which require substantial amounts of water for consumptive uses. According to the Special Master, slightly over 1,000 acre-feet for such purposes has been sold from Ute Dam since 1963. New is entitled to 00,000 acre-feet of conservation storage below Conchas Dam, which the Compact anticipated would take care of any future developments in the area below Conchas Dam. As we construe the Compact, if New has at any time stored more than that amount, it was not entitled to do so. Any water stored in excess of that amount should have been *40 allowed to flow through the Ute Dam, to be put to use by the downstream States, rather than impounded in New Accordingly, we overrule New 's exceptions to Part VII of the Report.[9] IV In Part VIII of his Report, the Master recommended that this Court remand to the Canadian River Commission the question whether certain water stored in Ute Reservoir, water which New has designated a "desilting pool,"[10] is exempt from the Article IV(b) limitation on New 's conservation storage because it allegedly serves a "sediment control" purpose within the meaning of Article II(d). Oklahoma and Texas except to this recommendation, arguing that there is sufficient evidence in the record to make a final determination on this issue, that the water in the desilting pool should be counted towards the Article IV(b) limitation, and that it is neither appropriate nor practical to refer the *41 matter to the Commission. The Master acknowledged that the record developed in this case probably was sufficient to permit him to decide this issue, Report, at 99-100, but he declined to address it until after the States had first made some attempt, via the Canadian River Commission, to negotiate a settlement. We sustain Texas' and Oklahoma's exception to Part VIII of the Master's Report insofar as those States argue that the matter should not be referred to the Commission. "Where the States themselves are before this Court for the determination of a controversy between them, neither can determine their rights inter sese, and this Court must pass upon every question essential to such a determination" 81 U.S. 163, It is true that the Court has "often expressed [a] preference that, where possible, States settle their controversies by `mutual accommodation and agreement,'" and 35 U.S. 589, ), but the Court "does have a serious responsibility to adjudicate cases where there are actual, existing controversies" between the States over the waters in interstate 373 U.S., at There is no doubt that such a dispute exists in this case, Oklahoma and Texas have properly invoked this Court's jurisdiction, and there is no claim that the "desilting pool" issue has not been properly presented. Thus, we see no legal basis for the Master refusing to decide the question and instead sending it to the Commission. Thus, we remand the "desilting pool" question to the Master for such further proceedings as may be necessary and a recommendation on the merits.[11] *4 V The States' exceptions to the Special Master's Report are overruled except for Oklahoma's and Texas' challenge to the Master's recommendation that the "desilting pool" issue be referred to the Canadian River Commission, which is sustained in part.[1] The case is remanded to the Master for such further proceedings and recommendations as may be necessary. So ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR, JUSTICE SCALIA, and JUSTICE KENNEDY join, concurring in part and dissenting in part. An interstate compact, though provided for in the Constitution, and ratified by Congress, is nonetheless essentially a contract between the signatory States. The Court's opinion *43 overruling New 's objections to the Report of the Special Master varies the terms of a contract to which the States of Oklahoma, New and Texas freely agreed. I do not believe it is within the Court's power to do this, and I therefore dissent from Part III of the Court's opinion, which restricts New 's use of waters that spill over Conchas Dam. I concur in Parts I, II, and IV of the Court's opinion. The Canadian River traverses three States. It originates in the high country of northern New flowing southeast from there into the Texas Panhandle. New has erected two dams on the river, Conchas Dam and Ute Dam, which provide irrigation water for farming and municipal water for the city of Tucumcari, New In Texas, the Sanford project diverts water to serve the municipal and industrial requirements of Texas cities throughout the Texas Panhandle region, from Amarillo to Lubbock. The river flows eastward from this project across the Texas Panhandle and into Oklahoma, and thence southeasterly throughout almost the entire State of Oklahoma until it joins the Arkansas River in the Eufala Reservoir a few miles west of Fort Smith, Arkansas. In 1950, New Texas, and Oklahoma convened to draft the Canadian River Compact (Compact), which apportioned the Canadian's waters in a manner that they hoped would serve New 's and Texas' already substantial needs while anticipating the future needs of those States and Oklahoma. Article IV of the Compact, which governs the allocation of water to New provides as follows: "(a) New shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam. "(b) New shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River in New below Conchas Dam, provided that the amount of conservation storage in New available for impounding these waters which originate in *44 the drainage basin of Canadian River below Conchas Dam shall be limited to an aggregate of two hundred thousand (00,000) acre-feet." I part company with the majority's interpretation of this Article, based on my view that this provision means what it says. By its express terms, Article IV places no restrictions on New 's use of waters originating above Conchas Dam. It imposes only two restrictions on its use of the waters originating in the drainage basin of the Canadian River below Conchas Dam: First, New 's enjoyment of these lower-basin waters is restricted to waters located in New ; second, New may allocate no more than 00,000 acre-feet of its total storage capacity for the conservation of these lower basin waters. The Compact thus distinguishes between water "originating" in the lower basin and water "originating" at or above the upper basin. New enjoys free and unrestricted use of the latter. The ordinary understanding of what it means for waters to "originate" in a basin is that they "arise" or "com[e] into existence" in that location. See 10 Oxford English Dictionary 935-936 (d ed. 1989). Thus, according to the plain meaning of Article IV(a), New may make unrestricted use of the Canadian River waters that arise above Conchas Dam. These waters may be stored, used, or diverted for use without limitation. Unlike the waters that enter the Canadian River below Conchas Dam, these waters may pass into the lower basin without being subject to the 00,000 acre-feet conservation storage restriction of Article IV(b). Despite the clear import of the Compact's terms, the Court concludes that the Compact cannot mean what it says, and instead fashions a different allocation than that which is literally described. The Court concludes that "the intent of the Compact drafters was to give New free and unrestricted use of waters originating in the Canadian River drainage basin above Conchas Dam only if the waters were *45 `stored, used or diverted for use at or above Conchas Dam.'" Ante, at 3 (quoting Report of Special Master 59) (emphasis in original). The emphasized terms do not appear anywhere in the Compact, and reflect not the intent of the parties, but instead the intent that the Court now imputes to them. Although the Compact grants New use of "all" waters originating above Conchas Dam, the Court reads this to mean "some": specifically excluding water that eventually winds up below Conchas Dam. Ante, at 3-33. Accordingly, the Court holds that any water found in the river below Conchas, including spills and seepage from above Conchas Dam, is not subject to free and unrestricted use — even though it clearly originated above Conchas Dam. A compact is a contract among its parties. 48 U.S. 14, 18 Congressional consent elevates an interstate compact into a law of the United States, yet it remains a contract which is subject to normal rules of enforcement and construction. Thus, "unless the compact to which Congress has consented is somehow unconstitutional, no court may order relief inconsistent with its express terms." 46 U.S. 554, Accordingly, where the terms of the compact are unambiguous, this Court must give effect to the express mandate of the signatory States. The Court asserts that we may rewrite the express terms of Article IV(a) because of its understanding of the practical consequences of faithfully applying that provision. Ante, at 30-3. The Court contends that, if taken at its word, the Compact would permit New to lay claim to any water originating above Conchas Dam, including tributaries that arise in Colorado. The Court further asserts that a literal interpretation would permit New to then chase this water down and continue to claim access to it as it passes down through Texas and Oklahoma. Based on its view that the Compact could not have been drafted to produce the implausible consequence that New could appropriate *46 Colorado's, Texas', and Oklahoma's waters, the Court abandons the literal text of the Compact and casts off in search of a new interpretation of the word "originating." Ante, at 3. The Court's approach conjures up impractical consequences where none exist. The language of the Compact does not in any way support the notion that Colorado (a State that did not even participate in the Compact) might forfeit its waters to New Colorado's rights are not implicated by the Compact at all. Although a small portion of the Canadian River's waters arise in Colorado, only New Texas, and Oklahoma participated in the Compact and are parties to it. By its terms, the Compact allocates only those rights over the interstate waters of the Canadian River belonging to those three States. See Art. X. Thus, the Compact could not, and did not purport to, allocate Colorado's portion of the Canadian River. Any dispute between Colorado and the signatory States to this Compact must be resolved outside the terms of the Compact, and there is no reason to construe this Compact as though it purported to deal with Colorado's claims. Similarly, Article V of the Compact dispels any concern that New 's rights under a literal reading of Article IV(a) extend to waters originating above Conchas Dam that have left the State. That provision gives Texas "free and unrestricted use of all waters of [the] Canadian River in Texas," subject to certain storage limitations. The Compact gives New no rights to recapture errant water that reaches Texas because that water is then "in" Texas and therefore subject to Texas' rights under the Compact. The majority's failure to reconcile Article V with Article IV violates the ordinary rule of statutory and contract interpretation that all provisions of a Compact must be read together in a meaningful manner. See United 43 *47 Had the Compact's drafters intended to limit New 's free and unrestricted use of the Canadian River waters originating above Conchas Dam in the manner announced today, they would certainly have done so more directly. For example, they might have drafted Article IV(a) to provide that "the amount of conservation storage in New below Conchas Dam shall be limited to an aggregate of 00,000 acre-feet." But they did not. Instead, they specifically agreed that only waters "which originate in the drainage basin of [the] Canadian River below Conchas Dam" were to be so restricted. The only reasonable conclusion to draw from this is that they intended the word "originating" to have some content. The Court's free-form exploration of the practical consequences of the parties' agreement, and its reliance on evidence outside of the Compact to introduce ambiguity into Compact terms, is both contrary to our precedents and unfair to the parties. When parties to a contract have expressed their intent on a matter in unambiguous terms, we should not substitute our will for their purpose. at The parties made an agreement, and have acted in reliance upon the terms of that contract and settled principles of contract law. The contract law principles of all three States disallow recourse to evidence outside the record under these circumstances. In those jurisdictions, where the language of an agreement clearly expresses the intent of the parties, courts may not rely on extrinsic evidence to vary its terms. See, e. g., Mercury Investment 706 P.d 53, 59 ; Hobbs 560 S.W.d 85, ; 790 P.d 50, Even viewed as a federal statute, the Court's treatment of the Compact's plain language is improper. Congress gave its blessing to this Compact and, in doing so, codified the agreement as federal law. As we stated in 565-566 *48 : "Where Congress has exercised its constitutional power over waters, courts have no power to substitute their own notions of an `equitable apportionment' for the apportionment chosen by Congress." Even if I agreed with the Court that it is appropriate in this case to look outside the Compact to determine the meaning of Article IV(a), I would not agree with its conclusion that the parties intended to include overflow waters from the upper basin of Conchas Dam within the term "waters which originate in the drainage basin of Canadian River below Conchas Dam." I do not find either piece of evidence relied upon by the Court to be supportive of that position, let alone persuasive. The Court says that the Compact negotiators did not place any limitation on the amount of storage of waters originating above Conchas Dam because they believed that those waters were already being fully used. Accordingly, the Court reasons, the negotiators assumed that any future development of the river's waters in New would necessarily occur only below Conchas Dam, and that 00,000 acre-feet of storage rights would be more than sufficient to satisfy those development needs. Ante, at 36. The Court concludes that "these circumstances," demonstrate that Texas and Oklahoma could not have intended to permit New to impound any more than the 00,000 acre-feet of water for conservation storage purposes below Conchas Dam. Ante, at 37. As a preliminary matter, the record simply does not bear out the Court's view. The only evidence that directly addresses the issue establishes that the 00,000 acre-feet limitation was derived solely from New 's perceived requirements for Canadian River waters originating in the lower basin. The "Hill memorandum," authored by Raymond Hill, Chairman of the Engineering Advisory Committee, and approved by the Compact Commission at its final meeting on January 31, 1951, stated that the storage limitation *49 was directed only towards impoundment of "the flood flows of Ute Creek and other minor tributaries of Canadian River entering the stream below Conchas Dam and above any contemplated storage works on Canadian River in Texas." Plaintiff's Exh. 38, p. 3 (emphasis added). The storage limits thus appear to have been directed at waters entering New below Conchas Dam but before the river enters Texas. Indeed, a letter from New 's Commissioner, John Bliss, to Senator Anderson of New written the day after the Compact was signed, expressly noted that the 00,000 acre-feet limitation did not apply to spills. Plaintiff's Exh. 8. By contrast, there is no direct support whatsoever for the Court's statement that the Compact's 00,000 acre-feet limitation on lower basin waters was intended to apply to upper basin waters captured in the lower basin. Even assuming that the Court's view of the facts is correct, I do not see how these facts support its conclusion. The Court observes that at the time of the Compact, New had fully developed reliable supplies of water above Conchas Reservoir, and thus there would be no purpose in placing a limitation upon any increase in the amount of storage of those waters. The Engineering Advisory Committee determined that "above Conchas, the available water supply has all been put to use — any further development above Conchas would deplete the supply available for Tucumcari Project; thus future developments would emphasize the better utilization of existing supplies." Plaintiff's Exh. 109, p. 1. This assessment, on its face, refers to the usage of normal water flows and not to the specific issue raised in this case, overflows and spills. In asserting that further development of the upper basin would draw on Tucumcari project waters, the engineer advisers did not contemplate spill waters or return flows from Tucumcari. As the Special Master himself concluded: "The most that can be said about the Engineer Advisors' treatment of Conchas spills is that they apparently did not *50 project that they would recur with the frequency and magnitude that they subsequently have." Report of Special Master 67 (emphasis added). The Court also relies on the fact that a 1960 study by the Bureau of Reclamation included outflows from Conchas Dam in estimating water supply to Sanford Reservoir, Texas. See Plaintiff's Exh. 10, pp. 64, 67, 70-71. This too has no bearing on the intent of the parties to this Compact, or the meaning of Article IV. The Bureau published the final draft of its report nearly a decade after the Compact was signed. The Bureau's report simply acknowledges that in light of the massive spills over Conchas Dam that occurred in 1941 and 194, it might be reasonable to assume that occasional spills might contribute to the Sanford project's water supply. This conclusion does not favor one view or another about New 's right to capture some of the overflow from Conchas Dam, since it is clear that New was physically incapable of capturing all of the overflow from the massive floods that have occurred twice this century. The Bureau's estimates merely reflect reality; they do not suggest that the Compact requires waters flowing from Conchas spills to serve the Sanford project alone. Finally, putting aside the Court's dismissive treatment of the Compact terms and the parties' expectations, today's decision makes little practical sense. The Court's decision will not protect the rights of the downstream States, except to the extent that it will force New to behave inefficiently in using its water. Oklahoma and Texas do not dispute that New could, if it desired, enlarge the reservoir behind Conchas Dam to capture all of the Canadian River's waters and dry up the river beds of the downstream States. Tr. of Oral Arg. 9, 33-34; ante, at 38. The Court also acknowledges that the Compact gives New the included right to capture additional waters at or above Conchas and then divert them to downstream locations. See ante, at 4, n. 1. The Court's construction, therefore, does *51 not prevent New from capturing flood waters and diverting them to projects below Conchas Dam; it merely forces the State to take its rightful waters by means of costly, inefficient, and wasteful engineering. The Canadian is an unpredictable river: For the first 36 years of the Compact it lay dormant before it boiled over Conchas Dam, spilling several hundred thousand acre-feet of water into the lower basin. The Compact allocated this water. New was entitled to keep as much as it wished in modest storage facilities to recapture its upper basin waters. All the rest would naturally flow down to Texas and Oklahoma. The Court today rewrites that simple allocation. While rivers such as the Canadian may be unpredictable, interpretation of contracts involving those rivers should not be. The Court frustrates settled expectations by rewriting the Compact to mean something other than what its language says. Accordingly, I dissent from Part III of the Court's decision.

Justice Powell

majority

San Antonio Independent School Dist. v. Rodriguez

https://www.courtlistener.com/opinion/108751/san-antonio-independent-school-dist-v-rodriguez/

https://www.courtlistener.com/api/rest/v3/clusters/108751/

1972-083

This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary *5 schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas.[1] They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants[2] were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. The complaint *6 was filed in the summer of 1968 and a three-judge court was impaneled in January 1969.[3] In December 1971[4] the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.[5] The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. 406 U.S. 966 (1972). For the reasons stated in this opinion, we reverse the decision of the District Court. I The first Texas State Constitution, promulgated upon Texas' entry into the Union in 1845, provided for the establishment of a system of free schools.[6] Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. As early as 1883, the state *7 constitution was amended to provide for the creation of local school districts empowered to levy ad valorem taxes with the consent of local taxpayers for the "erection. . . of school buildings" and for the "further maintenance of public free schools."[7] Such local funds as were raised were supplemented by funds distributed to each district from the State's Permanent and Available School Funds.[8] The Permanent School Fund, its predecessor established in 1854 with $2,000,000 realized from an annexation settlement,[9] was thereafter endowed with millions of acres of public land set aside to assure a continued source of income for school support.[10] The Available School Fund, which received income from the Permanent School Fund as well as from a state ad valorem property tax and other designated taxes,[11] served as the disbursing arm for most state educational funds throughout the late 1800's and first half of this century. Additionally, in 1918 an increase in state property taxes was used to finance a program providing free textbooks throughout the State.[12] Until recent times, Texas was a predominantly rural State and its population and property wealth were spread *8 relatively evenly across the State.[13] Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced.[14] The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.[15] In due time it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities.[16] Prior to 1939, the Available School Fund contributed money to every school district at a rate of $17.50 per school-age child.[17] Although the amount was increased several times in the early 1940's,[18]*9 the Fund was providing only $46 per student by 1945.[19] Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas' changing educational requirements, the state legislature in the late 1940's undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome interdistrict disparities in taxable resources. The Committee's efforts led to the passage of the Gilmer-Aikin bills, named for the Committee's co-chairmen, establishing the Texas Minimum Foundation School Program.[20] Today, this Program accounts for approximately half of the total educational expenditures in Texas.[21] The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible—as a unit—for providing the remaining 20%. The districts' share, known as the Local Fund Assignment, is apportioned among the school districts *10 under a formula designed to reflect each district's relative taxpaying ability. The Assignment is first divided among Texas' 254 counties pursuant to a complicated economic index that takes into account the relative value of each county's contribution to the State's total income from manufacturing, mining, and agricultural activities. It also considers each county's relative share of all payrolls paid within the State and, to a lesser extent, considers each county's share of all property in the State.[22] Each county's assignment is then divided among its school districts on the basis of each district's share of assessable property within the county.[23] The district, in turn, finances its share of the Assignment out of revenues from local property taxation. The design of this complex system was twofold. First, it was an attempt to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program's architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children[24] but that would not by itself exhaust any district's resources.[25] Today every school district does impose a property tax from which it derives locally expendable *11 funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program. In the years since this program went into operation in 1949, expenditures for education—from state as well as local sources—have increased steadily. Between 1949 and 1967, expenditures increased approximately 500%.[26] In the last decade alone the total public school budget rose from $750 million to $2.1 billion[27] and these increases have been reflected in consistently rising per-pupil expenditures throughout the State.[28] Teacher salaries, by far the largest item in any school's budget, have increased dramatically—the state-supported minimum salary for teachers possessing college degrees has risen from $2,400 to $6,000 over the last 20 years.[29] The school district in which appellees reside, the Edge-wood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State's impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its 25 elementary *12 and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest.[30] At an equalized tax rate of $1.05 per $100 of assessed property—the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967-1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248.[31] Federal funds added another $108 for a total of $356 per pupil.[32] Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly "Anglo," having only 18% Mexican-Americans *13 and less than 1% Negroes. The assessed property value per pupil exceeds $49,000,[33] and the median family income is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil. Although the 1967-1968 school year figures provide the only complete statistical breakdown for each category of aid,[34] more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970-1971 school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62% increase over the 1967-1968 school year. Indeed, state aid alone in 1970-1971 equaled Edgewood's entire 1967-1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970-1971.[35] These recent figures *14 also reveal the extent to which these two districts' allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant.[36] It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each.[37] *15 Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State[38] still exist. And it was *16 these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas' dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. 337 F. Supp., at 282. Finding that wealth is a "suspect" classification and that education is a "fundamental" interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling state interest. Id., at 282-284. On this issue the court concluded that "[n]ot only are defendants unable to demonstrate compelling state interests . . . they fail even to establish a reasonable basis for these classifications." Id., at 284. Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights[39] or that involve suspect classifications.[40] If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a "heavy burden of justification," that the State must *17 demonstrate that its educational system has been structured with "precision," and is "tailored" narrowly to serve legitimate objectives and that it has selected the "less drastic means" for effectuating its objectives,[41] the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that "[n]o one familiar with the Texas system would contend that it has yet achieved perfection."[42] Apart from its concession that educational financing in Texas has "defects"[43] and "imperfections,"[44] the State defends the system's rationality with vigor and disputes the District Court's finding that it lacks a "reasonable basis." This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. II The District Court's opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees' challenge to Texas' system of school financing. In concluding that strict judicial scrutiny was required, *18 that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes,[45] and on cases disapproving wealth restrictions on the right to vote.[46] Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education,[47] that there is a fundamental right to education and that, absent some compelling state justification, the Texas system could not stand. We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification nor the fundamental-interest analysis persuasive. A The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States,[48] is quite unlike any of the forms of wealth discrimination *19 heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference for purposes of consideration under the Constitution that the class of disadvantaged "poor" cannot be identified or defined in customary equal protection terms, and whether the relative—rather than absolute—nature of the asserted deprivation is of significant consequence. Before a State's laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below. The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court's opinion and of appellees' complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against "poor" persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally "indigent,"[49] or *20 (2) against those who are relatively poorer than others,[50] or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts.[51] Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect. The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois, *21 351 U.S. 12 (1956), and its progeny,[52] the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some "adequate substitute" for a full stenographic transcript. Britt v. North Carolina, 404 U.S. 226, 228 (1971); Gardner v. California, 393 U.S. 367 (1969); Draper v. Washington, 372 U.S. 487 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214 (1958). Likewise, in Douglas v. California, 372 U.S. 353 (1963), a decision establishing an indigent defendant's right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are, relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy. Williams v. Illinois, 399 U.S. 235 (1970), and Tate v. Short, 401 U.S. 395 (1971), struck down criminal penalties that subjected indigents to incarceration simply because *22 of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate. Finally, in Bullock v. Carter, 405 U.S. 134 (1972), the Court invalidated the Texas filing-fee requirement for primary elections. Both of the relevant classifying facts found in the previous cases were present there. The size of the fee, often running into the thousands of dollars and, in at least one case, as high as $8,900, effectively barred all potential candidates who were unable to pay the required fee. As the system provided "no reasonable alternative means of access to the ballot" (id., at 149), inability to pay occasioned an absolute denial of a position on the primary ballot. Only appellees' first possible basis for describing the class disadvantaged by the Texas school-financing system —discrimination against a class of definably "poor" persons—might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the "poor," appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any *23 designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that "[i]t is clearly incorrect . . . to contend that the `poor' live in `poor' districts . . . . Thus, the major factual assumption of Serrano—that the educational financing system discriminates against the `poor'—is simply false in Connecticut."[53] Defining "poor" families as those below the Bureau of the Census "poverty level,"[54] the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts.[55] Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts. Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money *24 expended for it,[56] a sufficient answer to appellees' argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.[57] Nor, indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an "adequate" education for all children in the State. By providing 12 years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to "guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by `A Minimum Foundation Program of Education.' "[58] The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures "every child in every school district an adequate education."[59] No proof was offered at trial persuasively discrediting or refuting the State's assertion. *25 For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of "poor" people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms.[60] As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family the lower the dollar amount of education received by the family's children. The principal evidence adduced in support of this comparative-discrimination claim is an affidavit submitted by Professor Joel S. Berke of Syracuse University's Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees' theory, *26 noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income. 337 F. Supp., at 282 n. 3. If, in fact, these correlations could be sustained, then it might be argued that expenditures on education— equated by appellees to the quality of education—are dependent on personal wealth. Appellees' comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation[61] is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor,[62] and whether a class of this size and diversity could ever claim the special protection accorded "suspect" classes. These questions need not be addressed in this case, however, since appellees' proof fails to support their allegations or the District Court's conclusions. Professor Berke's affidavit is based on a survey of approximately 10% of the school districts in Texas. His findings, previously set out in the margin,[63] show only *27 that the wealthiest few districts in the sample have the highest median family incomes and spend the most on education, and that the several poorest districts have the lowest family incomes and devote the least amount of money to education. For the remainder of the districts— 96 districts composing almost 90% of the sample—the correlation is inverted, i. e., the districts that spend next to the most money on education are populated by families having next to the lowest median family incomes while the districts spending the least have the highest median family incomes. It is evident that, even if the conceptual questions were answered favorably to appellees, no factual basis exists upon which to found a claim of comparative wealth discrimination.[64] This brings us, then, to the third way in which the classification scheme might be defined—district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to bottom, the disadvantaged class might be *28 viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education.[65] Alternatively, as suggested in MR. JUSTICE MARSHALL'S dissenting opinion, post, at 96, the class might be defined more restrictively to include children in districts with assessable property which falls below the statewide average, or median, or below some other artificially defined level. However described, it is clear that appellees' suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.[66] The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. *29 But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention.[67] They also assert that the State's system impermissibly interferes with the exercise of a "fundamental" right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. Graham v. Richardson, 403 U.S. 365, 375-376 (1971); Kramer v. Union School District, 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969). It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years.[68] B In Brown v. Board of Education, 347 U.S. 483 (1954), a unanimous Court recognized that "education is perhaps the most important function of state and local governments." Id., at 493. What was said there in the context of racial discrimination has lost none of its vitality with the passage of time: "Compulsory school attendance laws and the great expenditures for education both demonstrate our *30 recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Ibid. This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U.S. 205, 213 (BURGER, C. J.), 237, 238-239 (WHITE, J.), (1972); Abington School Dist. v. Schempp, 374 U.S. 203, 230 (1963) (BRENNAN, J.); McCollum v. Board of Education, 333 U.S. 203, 212 (1948) (Frankfurter, J.); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U.S. 79 (1907). Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that "the grave significance of education both to the individual and to our society" cannot be doubted.[69] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice *31 Harlan, dissenting from the Court's application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that "[v]irtually every state statute affects important rights." Shapiro v. Thompson, 394 U. S., at 655, 661. In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority's view of the importance of the interest affected, we would have gone "far toward making this Court a `super-legislature.' " Ibid. We would, indeed, then be assuming a legislative role and one for which the Court lacks both authority and competence. But MR. JUSTICE STEWART'S response in Shapiro to Mr. Justice Harlan's concern correctly articulates the limits of the fundamental-rights rationale employed in the Court's equal protection decisions: "The Court today does not `pick out particular human activities, characterize them as "fundamental," and give them added protection . . . .' To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands." Id., at 642. (Emphasis in original.) MR. JUSTICE STEWART'S statement serves to underline what the opinion of the Court in Shapiro makes clear. In subjecting to strict judicial scrutiny state welfare eligibility statutes that imposed a one-year durational residency requirement as a precondition to receiving AFDC benefits, the Court explained: "[I]n moving from State to State . . . appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Id., at 634. (Emphasis in original.) *32 The right to interstate travel had long been recognized as a right of constitutional significance,[70] and the Court's decision, therefore, did not require an ad hoc determination as to the social or economic importance of that right.[71] Lindsey v. Normet, 405 U.S. 56 (1972), decided only last Term, firmly reiterates that social importance is not the critical determinant for subjecting state legislation to strict scrutiny. The complainants in that case, involving a challenge to the procedural limitations imposed on tenants in suits brought by landlords under Oregon's Forcible Entry and Wrongful Detainer Law, urged the Court to examine the operation of the statute under "a more stringent standard than mere rationality." Id., at 73. The tenants argued that the statutory limitations implicated "fundamental interests which are particularly important to the poor," such as the " `need for decent shelter' " and the " `right to retain peaceful possession of one's home.' " Ibid. MR. JUSTICE WHITE'S analysis, in his opinion for the Court, is instructive: "We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access *33 to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent . . . . Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions." Id., at 74. (Emphasis supplied.) Similarly, in Dandridge v. Williams, 397 U.S. 471 (1970), the Court's explicit recognition of the fact that the "administration of public welfare assistance . . . involves the most basic economic needs of impoverished human beings," id., at 485,[72] provided no basis for departing from the settled mode of constitutional analysis of legislative classifications involving questions of economic and social policy. As in the case of housing, the central importance of welfare benefits to the poor was not an adequate foundation for requiring the State to justify its law by showing some compelling state interest. See also Jefferson v. Hackney, 406 U.S. 535 (1972); Richardson v. Belcher, 404 U.S. 78 (1971). The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. *34 Eisenstadt v. Baird, 405 U.S. 438 (1972);[73]Dunn v. Blumstein, 405 U.S. 330 (1972);[74]Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972);[75]Skinner v. Oklahoma, 316 U.S. 535 (1942).[76] *35 Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State's social and economic legislation. It is appellees' contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The "marketplace of ideas" is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information[77] becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge. A similar line of reasoning is pursued with respect to the right to vote.[78] Exercise of the franchise, it is contended, cannot be divorced from the educational foundation *36 of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed. We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted.[79] These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be pursued by a implemented by judicial intrusion into otherwise legitimate state activities. Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures *37 in Texas provide an education that falls short. Whatever merit appellees' argument might have if a State's financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process. Furthermore, the logical limitations on appellees' nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment.[80] If so, appellees' thesis would cast serious doubt on the authority of Dandridge v. Williams, supra, and Lindsey v. Normet, supra. We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty and have found those arguments unpersuasive. In one further respect we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has *38 applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which "deprived," "infringed," or "interfered" with the free exercise of some such fundamental personal right or liberty. See Skinner v. Oklahoma, supra, at 536; Shapiro v. Thompson, supra, at 634; Dunn v. Blumstein, supra, at 338-343. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. MR. JUSTICE BRENNAN, writing for the Court in Katzenbach v. Morgan, 384 U.S. 641 (1966), expresses well the salient point:[81] "This is not a complaint that Congress . . . has unconstitutionally denied or diluted anyone's right to vote but rather that Congress violated the Constitution by not extending the relief effected [to others similarly situated] . . . . "[The federal law in question] does not restrict or deny the franchise but in effect extends the franchise to persons who otherwise would be denied it by state law. . . . We need only decide whether the challenged limitation on the relief effected . . . was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . is *39 inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a `statute is not invalid under the Constitution because it might have gone farther than it did,' . . . that a legislature need not `strike at all evils at the same time,' . . . and that `reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind . . . .' " Id., at 656-657. (Emphasis in original.) The Texas system of school financing is not unlike the federal legislation involved in Katzenbach in this regard. Every step leading to the establishment of the system Texas utilizes today—including the decisions permitting localities to tax and expend locally, and creating and continuously expanding state aid—was implemented in an effort to extend public education and to improve its quality.[82] Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution.[83] *40 C It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights. We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State's system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures.[84] This Court has often admonished against such interferences with the State's fiscal policies under the Equal Protection Clause: "The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. . . . *41 It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . ." Madden v. Kentucky, 309 U.S. 83, 87-88 (1940). See also Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 445 (1940). Thus, we stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.[85] *42 In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of "intractable economic, social, and even philosophical problems." Dandridge v. Williams, 397 U. S., at 487. The very complexity of the problems of financing and managing a statewide public school system suggests that "there will be more than one constitutionally permissible method of solving them," and that, within the limits of rationality, "the legislature's efforts to tackle the problems" should be entitled to respect. Jefferson v. Hackney, 406 U. S., at 546-547. On even the most basic questions in this area the scholars and educational experts are divided. Indeed, one of the major *43 sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education[86]— an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education.[87] And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching re-examination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions. *44 It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While "[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,"[88] it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State. The foregoing considerations buttress our conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention. III The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause. Apart from federal assistance, each Texas school receives its funds from the State and from its local school *45 district. On a statewide average, a roughly comparable amount of funds is derived from each source.[89] The State's contribution, under the Minimum Foundation Program, was designed to provide an adequate minimum educational offering in every school in the State. Funds are distributed to assure that there will be one teacher— compensated at the state-supported minimum salary— for every 25 students.[90] Each school district's other supportive personnel are provided for: one principal for every 30 teachers;[91] one "special service" teacher— librarian, nurse, doctor, etc.—for every 20 teachers;[92] superintendents, vocational instructors, counselors, and educators for exceptional children are also provided.[93] Additional funds are earmarked for current operating expenses, for student transportation,[94] and for free textbooks.[95] The program is administered by the State Board of Education and by the Central Education Agency, which also have responsibility for school accreditation[96] and for monitoring the statutory teacher-qualification standards.[97] As reflected by the 62% increase in funds allotted to the Edgewood School District over the last three years,[98] the State's financial contribution to education is steadily increasing. None of Texas' school districts, however, *46 has been content to rely alone on funds from the Foundation Program. By virtue of the obligation to fulfill its Local Fund Assignment, every district must impose an ad valorem tax on property located within its borders. The Fund Assignment was designed to remain sufficiently low to assure that each district would have some ability to provide a more enriched educational program.[99] Every district supplements its Foundation grant in this manner. In some districts, the local property tax contribution is insubstantial, as in Edgewood where the supplement was only $26 per pupil in 1967. In other districts, the local share may far exceed even the total Foundation grant. In part, local differences are attributable to differences in the rates of taxation or in the degree to which the market value for any category of property varies from its assessed value.[100] The greatest interdistrict disparities, however, are attributable to differences in the amount of assessable property available within any district. Those districts that have more property, or more valuable property, have a greater capability for supplementing state funds. In large measure, these additional local revenues are devoted to paying higher salaries to more teachers. Therefore, the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules.[101] *47 This, then, is the basic outline of the Texas school financing structure. Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even "to establish a reasonable basis" for a system that results in different levels of per-pupil expenditure. 337 F. Supp., at 284. We disagree. In its reliance on state as well as local resources, the Texas system is comparable to the systems employed *48 in virtually every other State.[102] The power to tax local property for educational purposes has been recognized in Texas at least since 1883.[103] When the growth of commercial and industrial centers and accompanying shifts in population began to create disparities in local resources, Texas undertook a program calling for a considerable investment of state funds. The "foundation grant" theory upon which Texas legislators and educators based the Gilmer-Aikin bills, was a product of the pioneering work of two New York educational reformers in the 1920's, George D. Strayer and Robert M. Haig.[104] Their efforts were devoted to establishing a means of guaranteeing a minimum statewide educational program without sacrificing the vital element of local participation. The Strayer-Haig thesis *49 represented an accommodation between these two competing forces. As articulated by Professor Coleman: "The history of education since the industrial revolution shows a continual struggle between two forces: the desire by members of society to have educational opportunity for all children, and the desire of each family to provide the best education it can afford for its own children."[105] The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). MR. JUSTICE STEWART stated there that "[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society." Id., at 469. THE CHIEF JUSTICE, in his dissent, agreed that "[l]ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well." Id., at 478. The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity *50 it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to "serve as a laboratory; and try novel social and economic experiments."[106] No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education. Appellees do not question the propriety of Texas' dedication to local control of education. To the contrary, they attack the school-financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in educational expenditures. While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others,[107]*51 the existence of "some inequality" in the manner in which the State's rationale is achieved is not alone a sufficient basis for striking down the entire system. McGowan v. Maryland, 366 U.S. 420, 425-426 (1961). It may not be condemned simply because it imperfectly effectuates the State's goals. Dandridge v. Williams, 397 U. S., at 485. Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State's interest, which occasion "less drastic" disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. Cf. Dunn v. Blumstein, 405 U. S., at 343; Shelton v. Tucker, 364 U.S. 479, 488 (1960). It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain under the present system a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools.[108] The people of Texas may be *52 justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe *53 that along with increased control of the purse strings at the state level will go increased control over local policies.[109] Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on "happenstance." They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of *54 local taxation—indeed the very existence of identifiable local governmental units—requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others.[110] Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions—public and private. Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live. In sum, to the extent that the Texas system of school financing results in unequal expenditures between children *55 who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings and has persistently endeavored—not without some success—to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and in major part is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911), it is important to remember that at every stage of its development it has constituted a "rough accommodation" of interests in an effort to arrive at practical and workable solutions. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913). One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. McGinnis v. Royster, 410 U.S. 263, 270 (1973). We hold that the Texas plan abundantly satisfies this standard. *56 IV In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241 (1971), a cautionary postscript seems appropriate. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education. Some commentators have concluded that, whatever the contours of the alternative financing programs that might be devised and approved, the result could not avoid being a beneficial one. But, just as there is nothing simple about the constitutional issues involved in these cases, there is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education. Those who have devoted the most thoughtful attention to the practical ramifications of these cases have found no clear or dependable answers and their scholarship reflects no such unqualified confidence in the desirability of completely uprooting the existing system. The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education. Unless there is to be a substantial increase in state expenditures on education across the board—an event the likelihood of which is open to considerable question[111]—these groups stand to *57 realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i. e., in those districts that would benefit from the redistribution of existing resources. Yet, recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts.[112] Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts.[113] Additionally, *58 several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers,[114] a result that would exacerbate rather than ameliorate existing conditions in those areas. These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court's function. The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already *59 have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them. Reversed. MR.

This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary *5 schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas.[1] They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants[2] were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. The complaint *6 was filed in the summer of 1968 and a three-judge court was impaneled in January[3] In December [4] the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.[5] The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. For the reasons stated in this opinion, we reverse the decision of the District Court. I The first Texas State Constitution, promulgated upon Texas' entry into the Union in 1845, provided for the establishment of a system of free schools.[6] Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. As early as 1883, the state *7 constitution was amended to provide for the creation of local school districts empowered to levy ad valorem taxes with the consent of local taxpayers for the "erection. of school buildings" and for the "further maintenance of public free schools."[7] Such local funds as were raised were supplemented by funds distributed to each district from the State's Permanent and Available School Funds.[8] The Permanent School Fund, its predecessor established in 1854 with $2,000,000 realized from an annexation settlement,[9] was thereafter endowed with millions of acres of public land set aside to assure a continued source of income for school support.[10] The Available School Fund, which received income from the Permanent School Fund as well as from a state ad valorem property tax and other designated taxes,[11] served as the disbursing arm for most state educational funds throughout the late 1800's and first half of this century. Additionally, in 1918 an increase in state property taxes was used to finance a program providing free textbooks throughout the State.[12] Until recent times, Texas was a predominantly rural State and its population and property wealth were spread *8 relatively evenly across the State.[13] Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced.[14] The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.[15] In due time it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities.[16] Prior to 1939, the Available School Fund contributed money to every school district at a rate of $17.50 per school-age child.[17] Although the amount was increased several times in the early 1940's,[18]*9 the Fund was providing only $46 per student by 1945.[19] Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas' changing educational requirements, the state legislature in the late 1940's undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome interdistrict disparities in taxable resources. The Committee's efforts led to the passage of the Gilmer-Aikin bills, named for the Committee's co-chairmen, establishing the Texas Minimum Foundation School Program.[20] Today, this Program accounts for approximately half of the total educational expenditures in Texas.[21] The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible—as a unit—for providing the remaining 20%. The districts' share, known as the Local Fund Assignment, is apportioned among the school districts *10 under a formula designed to reflect each district's relative taxpaying ability. The Assignment is first divided among Texas' 254 counties pursuant to a complicated economic index that takes into account the relative value of each county's contribution to the State's total income from manufacturing, mining, and agricultural activities. It also considers each county's relative share of all payrolls paid within the State and, to a lesser extent, considers each county's share of all property in the State.[22] Each county's assignment is then divided among its school districts on the basis of each district's share of assessable property within the county.[23] The district, in turn, finances its share of the Assignment out of revenues from local property taxation. The design of this complex system was twofold. First, it was an attempt to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program's architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children[24] but that would not by itself exhaust any district's resources.[25] Today every school district does impose a property tax from which it derives locally expendable *11 funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program. In the years since this program went into operation in 1949, expenditures for education—from state as well as local sources—have increased steadily. Between 1949 and 1967, expenditures increased approximately 500%.[26] In the last decade alone the total public school budget rose from $750 million to $2.1 billion[27] and these increases have been reflected in consistently rising per-pupil expenditures throughout the State.[28] Teacher salaries, by far the largest item in any school's budget, have increased dramatically—the state-supported minimum salary for teachers possessing college degrees has risen from $2,400 to $6,000 over the last 20 years.[29] The school district in which appellees reside, the Edge-wood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State's impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its 25 elementary *12 and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest.[30] At an equalized tax rate of $1.05 per $100 of assessed property—the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967-1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248.[31] Federal funds added another $108 for a total of $356 per pupil.[32] Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly "Anglo," having only 18% Mexican-Americans *13 and less than 1% Negroes. The assessed property value per pupil exceeds $49,000,[33] and the median family income is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil. Although the 1967-1968 school year figures provide the only complete statistical breakdown for each category of aid,[34] more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970- school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62% increase over the 1967-1968 school year. Indeed, state aid alone in 1970- equaled Edgewood's entire 1967-1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970-.[35] These recent figures *14 also reveal the extent to which these two districts' allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant.[36] It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each.[37] *15 Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State[38] still exist. And it was *16 these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas' dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. Finding that wealth is a "suspect" classification and that education is a "fundamental" interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling state interest. On this issue the court concluded that "[n]ot only are defendants unable to demonstrate compelling state interests they fail even to establish a reasonable basis for these classifications." Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights[39] or that involve suspect classifications.[40] If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a "heavy burden of justification," that the State must *17 demonstrate that its educational system has been structured with "precision," and is "tailored" narrowly to serve legitimate objectives and that it has selected the "less drastic means" for effectuating its objectives,[41] the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that "[n]o one familiar with the Texas system would contend that it has yet achieved perfection."[42] Apart from its concession that educational financing in Texas has "defects"[43] and "imperfections,"[44] the State defends the system's rationality with vigor and disputes the District Court's finding that it lacks a "reasonable basis." This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. II The District Court's opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees' challenge to Texas' system of school financing. In concluding that strict judicial scrutiny was required, *18 that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes,[45] and on cases disapproving wealth restrictions on the right to vote.[46] Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education,[47] that there is a fundamental right to education and that, absent some compelling state justification, the Texas system could not stand. We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification nor the fundamental-interest analysis persuasive. A The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States,[48] is quite unlike any of the forms of wealth discrimination *19 heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference for purposes of consideration under the Constitution that the class of disadvantaged "poor" cannot be identified or defined in customary equal protection terms, and whether the relative—rather than absolute—nature of the asserted deprivation is of significant consequence. Before a State's laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below. The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court's opinion and of appellees' complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against "poor" persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally "indigent,"[49] or *20 (2) against those who are relatively poorer than others,[50] or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts.[51] Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect. The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In and its progeny,[52] the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some "adequate substitute" for a full stenographic transcript. ; ; ; Likewise, in a decision establishing an indigent defendant's right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are, relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy. and struck down criminal penalties that subjected indigents to incarceration simply because *22 of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate. Finally, in the Court invalidated the Texas filing-fee requirement for primary elections. Both of the relevant classifying facts found in the previous cases were present there. The size of the fee, often running into the thousands of dollars and, in at least one case, as high as $8,900, effectively barred all potential candidates who were unable to pay the required fee. As the system provided "no reasonable alternative means of access to the ballot" ( at 149), inability to pay occasioned an absolute denial of a position on the primary ballot. Only appellees' first possible basis for describing the class disadvantaged by the Texas school-financing system —discrimination against a class of definably "poor" persons—might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the "poor," appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any *23 designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that "[i]t is clearly incorrect to contend that the `poor' live in `poor' districts Thus, the major factual assumption of Serrano—that the educational financing system discriminates against the `poor'—is simply false in Connecticut."[53] Defining "poor" families as those below the Bureau of the Census "poverty level,"[54] the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts.[55] Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts. Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money *24 expended for it,[56] a sufficient answer to appellees' argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.[57] Nor, indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an "adequate" education for all children in the State. By providing 12 years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to "guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by `A Minimum Foundation Program of Education.' "[58] The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures "every child in every school district an adequate education."[59] No proof was offered at trial persuasively discrediting or refuting the State's assertion. *25 For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of "poor" people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms.[60] As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family the lower the dollar amount of education received by the family's children. The principal evidence adduced in support of this comparative-discrimination claim is an affidavit submitted by Professor Joel S. Berke of Syracuse University's Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees' theory, *26 noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income. n. 3. If, in fact, these correlations could be sustained, then it might be argued that expenditures on education— equated by appellees to the quality of education—are dependent on personal wealth. Appellees' comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation[61] is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor,[62] and whether a class of this size and diversity could ever claim the special protection accorded "suspect" classes. These questions need not be addressed in this case, however, since appellees' proof fails to support their allegations or the District Court's conclusions. Professor Berke's affidavit is based on a survey of approximately 10% of the school districts in Texas. His findings, previously set out in the margin,[63] show only *27 that the wealthiest few districts in the sample have the highest median family incomes and spend the most on education, and that the several poorest districts have the lowest family incomes and devote the least amount of money to education. For the remainder of the districts— 96 districts composing almost 90% of the sample—the correlation is inverted, i. e., the districts that spend next to the most money on education are populated by families having next to the lowest median family incomes while the districts spending the least have the highest median family incomes. It is evident that, even if the conceptual questions were answered favorably to appellees, no factual basis exists upon which to found a claim of comparative wealth discrimination.[64] This brings us, then, to the third way in which the classification scheme might be defined—district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to bottom, the disadvantaged class might be *28 viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education.[65] Alternatively, as suggested in MR. JUSTICE MARSHALL'S dissenting opinion, post, at 96, the class might be defined more restrictively to include children in districts with assessable property which falls below the statewide average, or median, or below some other artificially defined level. However described, it is clear that appellees' suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.[66] The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. *29 But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention.[67] They also assert that the State's system impermissibly interferes with the exercise of a "fundamental" right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. ; ; It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years.[68] B In a unanimous Court recognized that "education is perhaps the most important function of state and local governments." What was said there in the context of racial discrimination has lost none of its vitality with the passage of time: "Compulsory school attendance laws and the great expenditures for education both demonstrate our *30 recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. (BURGER, C. J.), 237, 238-239 (WHITE, J.), ; Abington School ; ; ; ; Interstate Consolidated Street R. Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that "the grave significance of education both to the individual and to our society" cannot be doubted.[69] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice *31 Harlan, dissenting from the Court's application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that "[v]irtually every state statute affects important rights." U. S., at 655, 661. In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority's view of the importance of the interest affected, we would have gone "far toward making this Court a `super-legislature.' " We would, indeed, then be assuming a legislative role and one for which the Court lacks both authority and competence. But MR. JUSTICE STEWART'S response in Shapiro to Mr. Justice Harlan's concern correctly articulates the limits of the fundamental-rights rationale employed in the Court's equal protection decisions: "The Court today does not `pick out particular human activities, characterize them as "fundamental," and give them added protection' To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands." (Emphasis in original.) MR. JUSTICE STEWART'S statement serves to underline what the opinion of the Court in Shapiro makes clear. In subjecting to strict judicial scrutiny state welfare eligibility statutes that imposed a one-year durational residency requirement as a precondition to receiving AFDC benefits, the Court explained: "[I]n moving from State to State appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." (Emphasis in original.) *32 The right to interstate travel had long been recognized as a right of constitutional significance,[70] and the Court's decision, therefore, did not require an ad hoc determination as to the social or economic importance of that right.[71] decided only last Term, firmly reiterates that social importance is not the critical determinant for subjecting state legislation to strict scrutiny. The complainants in that case, involving a challenge to the procedural limitations imposed on tenants in suits brought by landlords under Oregon's Forcible Entry and Wrongful Detainer Law, urged the Court to examine the operation of the statute under "a more stringent standard than mere rationality." The tenants argued that the statutory limitations implicated "fundamental interests which are particularly important to the poor," such as the " `need for decent shelter' " and the " `right to retain peaceful possession of one's home.' " MR. JUSTICE WHITE'S analysis, in his opinion for the Court, is instructive: "We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access *33 to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions." (Emphasis supplied.) Similarly, in the Court's explicit recognition of the fact that the "administration of public welfare assistance involves the most basic economic needs of impoverished human beings,"[72] provided no basis for departing from the settled mode of constitutional analysis of legislative classifications involving questions of economic and social policy. As in the case of housing, the central importance of welfare benefits to the poor was not an adequate foundation for requiring the State to justify its law by showing some compelling state interest. See also ; The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. *34 ;[73]Dunn v. ;[74]Police Dept. of ;[75]Skinner v.[76] *35 Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State's social and economic legislation. It is appellees' contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The "marketplace of ideas" is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information[77] becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge. A similar line of reasoning is pursued with respect to the right to vote.[] Exercise of the franchise, it is contended, cannot be divorced from the educational foundation *36 of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed. We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted.[79] These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be pursued by a implemented by judicial intrusion into otherwise legitimate state activities. Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures *37 in Texas provide an education that falls short. Whatever merit appellees' argument might have if a State's financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process. Furthermore, the logical limitations on appellees' nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment.[80] If so, appellees' thesis would cast serious doubt on the authority of and We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty and have found those arguments unpersuasive. In one further respect we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has *38 applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which "deprived," "infringed," or "interfered" with the free exercise of some such fundamental personal right or liberty. See Skinner v. ; ; Dunn v. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. MR. JUSTICE BRENNAN, writing for the Court in expresses well the salient point:[81] "This is not a complaint that Congress has unconstitutionally denied or diluted anyone's right to vote but rather that Congress violated the Constitution by not extending the relief effected [to others similarly situated] "[The federal law in question] does not restrict or deny the franchise but in effect extends the franchise to persons who otherwise would be denied it by state law. We need only decide whether the challenged limitation on the relief effected was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights is *39 inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a `statute is not invalid under the Constitution because it might have gone farther than it did,' that a legislature need not `strike at all evils at the same time,' and that `reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind' " (Emphasis in original.) The Texas system of school financing is not unlike the federal legislation involved in Katzenbach in this regard. Every step leading to the establishment of the system Texas utilizes today—including the decisions permitting localities to tax and expend locally, and creating and continuously expanding state aid—was implemented in an effort to extend public education and to improve its quality.[82] Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution.[83] *40 C It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights. We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State's system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures.[84] This Court has often admonished against such interferences with the State's fiscal policies under the Equal Protection Clause: "The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. *41 It has been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes." See also ; Thus, we stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.[85] *42 In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of "intractable economic, social, and even philosophical problems." The very complexity of the problems of financing and managing a statewide public school system suggests that "there will be more than one constitutionally permissible method of solving them," and that, within the limits of rationality, "the legislature's efforts to tackle the problems" should be entitled to respect. -547. On even the most basic questions in this area the scholars and educational experts are divided. Indeed, one of the major *43 sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education[86]— an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education.[87] And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching re-examination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions. *44 It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While "[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,"[88] it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State. The foregoing considerations buttress our conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention. III The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause. Apart from federal assistance, each Texas school receives its funds from the State and from its local school *45 district. On a statewide average, a roughly comparable amount of funds is derived from each source.[89] The State's contribution, under the Minimum Foundation Program, was designed to provide an adequate minimum educational offering in every school in the State. Funds are distributed to assure that there will be one teacher— compensated at the state-supported minimum salary— for every 25 students.[90] Each school district's other supportive personnel are provided for: one principal for every 30 teachers;[91] one "special service" teacher— librarian, nurse, doctor, etc.—for every 20 teachers;[92] superintendents, vocational instructors, counselors, and educators for exceptional children are also provided.[93] Additional funds are earmarked for current operating expenses, for student transportation,[94] and for free textbooks.[95] The program is administered by the State Board of Education and by the Central Education Agency, which also have responsibility for school accreditation[96] and for monitoring the statutory teacher-qualification standards.[97] As reflected by the 62% increase in funds allotted to the Edgewood School District over the last three years,[98] the State's financial contribution to education is steadily increasing. None of Texas' school districts, however, *46 has been content to rely alone on funds from the Foundation Program. By virtue of the obligation to fulfill its Local Fund Assignment, every district must impose an ad valorem tax on property located within its borders. The Fund Assignment was designed to remain sufficiently low to assure that each district would have some ability to provide a more enriched educational program.[99] Every district supplements its Foundation grant in this manner. In some districts, the local property tax contribution is insubstantial, as in Edgewood where the supplement was only $26 per pupil in 1967. In other districts, the local share may far exceed even the total Foundation grant. In part, local differences are attributable to differences in the rates of taxation or in the degree to which the market value for any category of property varies from its assessed value.[100] The greatest interdistrict disparities, however, are attributable to differences in the amount of assessable property available within any district. Those districts that have more property, or more valuable property, have a greater capability for supplementing state funds. In large measure, these additional local revenues are devoted to paying higher salaries to more teachers. Therefore, the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules.[101] *47 This, then, is the basic outline of the Texas school financing structure. Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even "to establish a reasonable basis" for a system that results in different levels of per-pupil 337 F. Supp., We disagree. In its reliance on state as well as local resources, the Texas system is comparable to the systems employed *48 in virtually every other State.[102] The power to tax local property for educational purposes has been recognized in Texas at least since 1883.[103] When the growth of commercial and industrial centers and accompanying shifts in population began to create disparities in local resources, Texas undertook a program calling for a considerable investment of state funds. The "foundation grant" theory upon which Texas legislators and educators based the Gilmer-Aikin bills, was a product of the pioneering work of two New York educational reformers in the 1920's, George D. Strayer and Robert M. Haig.[104] Their efforts were devoted to establishing a means of guaranteeing a minimum statewide educational program without sacrificing the vital element of local participation. The Strayer-Haig thesis *49 represented an accommodation between these two competing forces. As articulated by Professor Coleman: "The history of education since the industrial revolution shows a continual struggle between two forces: the desire by members of society to have educational opportunity for all children, and the desire of each family to provide the best education it can afford for its own children."[105] The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in MR. JUSTICE STEWART stated there that "[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society." THE CHIEF JUSTICE, in his dissent, agreed that "[l]ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well." The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity *50 it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to "serve as a laboratory; and try novel social and economic experiments."[106] No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education. Appellees do not question the propriety of Texas' dedication to local control of education. To the contrary, they attack the school-financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in educational expenditures. While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others,[107]*51 the existence of "some inequality" in the manner in which the State's rationale is achieved is not alone a sufficient basis for striking down the entire system. It may not be condemned simply because it imperfectly effectuates the State's goals. 397 U. S., Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State's interest, which occasion "less drastic" disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. Cf. Dunn v. ; It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain under the present system a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools.[108] The people of Texas may be *52 justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe *53 that along with increased control of the purse strings at the state level will go increased control over local policies.[109] Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on "happenstance." They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of *54 local taxation—indeed the very existence of identifiable local governmental units—requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others.[110] Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions—public and private. Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live. In sum, to the extent that the Texas system of school financing results in unequal expenditures between children *55 who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings and has persistently endeavored—not without some success—to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and in major part is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, it is important to remember that at every stage of its development it has constituted a "rough accommodation" of interests in an effort to arrive at practical and workable solutions. Metropolis Theatre U.S. 61, One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. We hold that the Texas plan abundantly satisfies this standard. *56 IV In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, a cautionary postscript seems appropriate. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education. Some commentators have concluded that, whatever the contours of the alternative financing programs that might be devised and approved, the result could not avoid being a beneficial one. But, just as there is nothing simple about the constitutional issues involved in these cases, there is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education. Those who have devoted the most thoughtful attention to the practical ramifications of these cases have found no clear or dependable answers and their scholarship reflects no such unqualified confidence in the desirability of completely uprooting the existing system. The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education. Unless there is to be a substantial increase in state expenditures on education across the board—an event the likelihood of which is open to considerable question[111]—these groups stand to *57 realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i. e., in those districts that would benefit from the redistribution of existing resources. Yet, recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts.[112] Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts.[113] Additionally, *58 several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers,[114] a result that would exacerbate rather than ameliorate existing conditions in those areas. These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court's function. The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already *59 have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them. Reversed. MR.

Justice Stevens

majority

Martinez v. California

https://www.courtlistener.com/opinion/110169/martinez-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/110169/

1979-018

The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U.S. C. § 1983.[1] We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law. The case arises out of the murder of a 15-year-old girl by a parolee. Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee. The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969. He was first committed to a state mental hospital as a "Mentally Disordered Sex Offender not amenable to treatment" and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled. Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother. They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain "requisite formalities." Five months after his release Thomas tortured *280 and killed appellants' decedent. We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious.[2] Appellants prayed for actual and punitive damages of $2 million. The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. 85 Cal. App. 3d 430, 149 Cal. Rptr. 519 (1978). After the California Supreme Court denied appellants' petition for a hearing, we noted probable jurisdiction. 441 U.S. 960. I Section 845.8 (a) of the Cal. Gov't Code Ann. (West Supp. 1979) provides: "Neither a public entity nor a public employee is liable for: (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release." The California courts held that this statute provided appellees with a complete defense to appellants' state-law claims.[3] They considered and rejected the contention that the immunity *281 statute as so construed violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.[4] Like the California courts, we cannot accept the contention that this statute deprived Thomas' victim of her life without due process of law because it condoned a parole decision that led indirectly to her death. The statute neither authorized nor immunized the deliberate killing of any human being. It is not the equivalent of a death penalty statute which expressly authorizes state agents to take a person's life after prescribed procedures have been observed. This statute merely provides a defense to potential state tort-law liability. At most, the availability of such a defense may have encouraged members of the parole board to take somewhat greater risks of recidivism in exercising their authority to release prisoners than they otherwise might. But the basic risk that repeat offenses may occur is always present in any parole system. A legislative decision that has an incremental impact on the probability that death will result in any given situation— such as setting the speed limit at 55-miles-per-hour instead of 45—cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander. Nor can the statute be characterized as an invalid deprivation of property. Arguably, the cause of action for wrongful death that the State has created is a species of "property" *282 protected by the Due Process Clause. On that hypothesis, the immunity statute could be viewed as depriving the plaintiffs of that property interest insofar as they seek to assert a claim against parole officials.[5] But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational. We have no difficulty in accepting California's conclusion that there "is a rational relationship between the state's purposes and the statute."[6] In fashioning state policy in a "practical *283 and troublesome area" like this, see McGinnis v. Royster, 410 U.S. 263, 270, the California Legislature could reasonably conclude that judicial review of a parole officer's decisions "would inevitably inhibit the exercise of discretion," United States ex rel. Miller v. Twomey, 479 F.2d 701, 721 (CA7 1973), cert. denied, 414 U.S. 1146. That inhibiting effect could impair the State's ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prison walls by holding out a promise of potential rewards. Whether one agrees or disagrees with California's decision to provide absolute immunity for parole officials in a case of this kind, one cannot deny that it rationally furthers a policy that reasonable lawmakers may favor. As federal judges, we have no authority to pass judgment on the wisdom of the underlying policy determination. We therefore find no merit in the contention that the State's immunity statute is unconstitutional when applied to defeat a tort claim arising under state law. II We turn then to appellants' § 1983 claim that appellees, by their action in releasing Thomas, subjected appellants' decedent to a deprivation of her life without due process of law.[7]*284 It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts.[8] We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in Baker v. McCollan, 443 U.S. 137, "[t]he first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right `secured by the Constitution and laws'" of the United States.[9] The answer to that inquiry disposes of this case. Appellants contend that the decedent's right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the "State . . . of life . . . without due process of law." Although the decision to release Thomas from prison *285 was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a "duty" to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), we hold that, taking these particular allegations as true, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment. Her life was taken by the parolee five months after his release.[10] He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 U.S. 232. Further, the parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to "deprive" someone of life by action taken in connection with the release of a prisoner on parole.[11] But we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as "a species of tort liability," Imbler v. Pachtman, 424 U.S. 409, 417, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute. The judgment is affirmed. So ordered.

The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U.S. C. 1983.[1] We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law. The case arises out of the murder of a 15-year-old girl by a parolee. Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee. The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969. He was first committed to a state mental hospital as a "Mentally Disordered Sex Offender not amenable to treatment" and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled. Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother. They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain "requisite formalities." Five months after his release Thomas tortured *280 and killed appellants' decedent. We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious.[2] Appellants prayed for actual and punitive damages of $2 million. The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. After the California Supreme Court denied appellants' petition for a hearing, we noted probable jurisdiction. I Section 845.8 (a) of the Cal. Gov't Code Ann. (West Supp. 1979) provides: "Neither a public entity nor a public employee is liable for: (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release." The California courts held that this statute provided appellees with a complete defense to appellants' state-law claims.[3] They considered and rejected the contention that the immunity *281 statute as so construed violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.[4] Like the California courts, we cannot accept the contention that this statute deprived Thomas' victim of her life without due process of law because it condoned a parole decision that led indirectly to her death. The statute neither authorized nor immunized the deliberate killing of any human being. It is not the equivalent of a death penalty statute which expressly authorizes state agents to take a person's life after prescribed procedures have been observed. This statute merely provides a defense to potential state tort-law liability. At most, the availability of such a defense may have encouraged members of the parole board to take somewhat greater risks of recidivism in exercising their authority to release prisoners than they otherwise might. But the basic risk that repeat offenses may occur is always present in any parole system. A legislative decision that has an incremental impact on the probability that death will result in any given situation— such as setting the speed limit at 55-miles-per-hour instead of 45—cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander. Nor can the statute be characterized as an invalid deprivation of property. Arguably, the cause of action for wrongful death that the State has created is a species of "property" *282 protected by the Due Process Clause. On that hypothesis, the immunity statute could be viewed as depriving the plaintiffs of that property interest insofar as they seek to assert a claim against parole officials.[5] But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational. We have no difficulty in accepting California's conclusion that there "is a rational relationship between the state's purposes and the statute."[6] In fashioning state policy in a "practical *283 and troublesome area" like this, see cert. denied, That inhibiting effect could impair the State's ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prison walls by holding out a promise of potential rewards. Whether one agrees or disagrees with California's decision to provide absolute immunity for parole officials in a case of this kind, one cannot deny that it rationally furthers a policy that reasonable lawmakers may favor. As federal judges, we have no authority to pass judgment on the wisdom of the underlying policy determination. We therefore find no merit in the contention that the State's immunity statute is unconstitutional when applied to defeat a tort claim arising under state law. II We turn then to appellants' 1983 claim that appellees, by their action in releasing Thomas, subjected appellants' decedent to a deprivation of her life without due process of law.[7]*284 It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts.[8] We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in "[t]he first inquiry in any 1983 suit is whether the plaintiff has been deprived of a right `secured by the Constitution and laws'" of the United States.[9] The answer to that inquiry disposes of this case. Appellants contend that the decedent's right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the "State of life without due process of law." Although the decision to release Thomas from prison *285 was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a "duty" to avoid harm to his victim or to have proximately caused her death, see ; we hold that, taking these particular allegations as true, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment. Her life was taken by the parolee five months after his release.[10] He was in no sense an agent of the parole board. Cf. Further, the parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to "deprive" someone of life by action taken in connection with the release of a prisoner on parole.[11] But we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law. Although a 1983 claim has been described as "a species of tort liability," it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute. The judgment is affirmed. So ordered.

Justice Kennedy

majority

Overton v. Bazzetta

https://www.courtlistener.com/opinion/130150/overton-v-bazzetta/

https://www.courtlistener.com/api/rest/v3/clusters/130150/

2002-073

The State of Michigan, by regulation, places certain restrictions on visits with prison inmates. The question before the Court is whether the regulations violate the substantive due process mandate of the Fourteenth Amendment, or the First or Eighth Amendments as applicable to the States through the Fourteenth Amendment. *129 I The population of Michigan's prisons increased in the early 1990's. More inmates brought more visitors, straining the resources available for prison supervision and control. In particular, prison officials found it more difficult to maintain order during visitation and to prevent smuggling or trafficking in drugs. Special problems were encountered with the increase in visits by children, who are at risk of seeing or hearing harmful conduct during visits and must be supervised with special care in prison visitation facilities. The incidence of substance abuse in the State's prisons also increased in this period. Drug and alcohol abuse by prisoners is unlawful and a direct threat to legitimate objectives of the corrections system, including rehabilitation, the maintenance of basic order, and the prevention of violence in the prisons. In response to these concerns, the Michigan Department of Corrections (MDOC or Department) revised its prison visitation policies in 1995, promulgating the regulations here at issue. One aspect of the Department's approach was to limit the visitors a prisoner is eligible to receive, in order to decrease the total number of visitors. Under MDOC's regulations, an inmate may receive visits only from individuals placed on an approved visitor list, except that qualified members of the clergy and attorneys on official business may visit without being listed. Mich. Admin. Code Rule 791.6609(2) (1999); Director's Office Mem. 1995-59 (effective date Aug. 25, 1995). The list may include an unlimited number of members of the prisoner's immediate family and 10 other individuals the prisoner designates, subject to some restrictions. Rule 791.6609(2). Minors under the age of 18 may not be placed on the list unless they are the children, stepchildren, grandchildren, or siblings of the inmate. Rule 791.6609(2)(b); Mich. Comp. Laws Ann. § 791.268a (West Supp. 2003). If an inmate's parental rights *130 have been terminated, the child may not be a visitor. Rule 791.6609(6)(a) (1999). A child authorized to visit must be accompanied by an adult who is an immediate family member of the child or of the inmate or who is the legal guardian of the child. Rule 791.6609(5); Mich. Dept. of Corrections Procedure OP-SLF/STF-05.03.140, p. 9 (effective date Sept. 15, 1999). An inmate may not place a former prisoner on the visitor list unless the former prisoner is a member of the inmate's immediate family and the warden has given prior approval. Rule 791.6609(7). The Department's revised policy also sought to control the widespread use of drugs and alcohol among prisoners. Prisoners who commit multiple substance-abuse violations are not permitted to receive any visitors except attorneys and members of the clergy. Rule 791.6609(11)(d). An inmate subject to this restriction may apply for reinstatement of visitation privileges after two years. Rule 791.6609(12). Reinstatement is within the warden's discretion. Ibid. Respondents are prisoners, their friends, and their family members. They brought this action under Rev. Stat. § 1979, 42 U.S. C. § 1983, alleging that the restrictions upon visitation violate the First, Eighth, and Fourteenth Amendments. It was certified as a class action under Federal Rule of Civil Procedure 23. Inmates who are classified as the highest security risks, as determined by the MDOC, are limited to noncontact visitation. This case does not involve a challenge to the method for making that determination. By contrast to contact visitation, during which inmates are allowed limited physical contact with their visitors in a large visitation room, inmates restricted to noncontact visits must communicate with their visitors through a glass panel, the inmate and the visitor being on opposite sides of a booth. In some facilities the booths are located in or at one side of the same room used for contact visits. The case before us concerns the regulations as they pertain to noncontact visits. *131 The United States District Court for the Eastern District of Michigan agreed with the prisoners that the regulations pertaining to noncontact visits were invalid. Bazzetta v. McGinnis, 148 F. Supp. 2d 813 (2001). The Sixth Circuit affirmed, 286 F.3d 311 (2002), and we granted certiorari, 537 U.S. 1043 (2002). II The Court of Appeals agreed with the District Court that the restrictions on noncontact visits are invalid. This was error. We first consider the contention, accepted by the Court of Appeals, that the regulations infringe a constitutional right of association. We have said that the Constitution protects "certain kinds of highly personal relationships," Roberts v. United States Jaycees, 468 U.S. 609, 618, 619-620 (1984). And outside the prison context, there is some discussion in our cases of a right to maintain certain familial relationships, including association among members of an immediate family and association between grandchildren and grandparents. See Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality opinion); Meyer v. Nebraska, 262 U.S. 390 (1923). This is not an appropriate case for further elaboration of those matters. The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977); Shaw v. Murphy, 532 U.S. 223, 229 (2001). And, as our cases have established, freedom of association is among the rights least compatible with incarceration. See Jones, supra, at 125-126; Hewitt v. Helms, 459 U.S. 460 (1983). Some curtailment of that freedom must be expected in the prison context. We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners. We *132 need not attempt to explore or define the asserted right of association at any length or determine the extent to which it survives incarceration because the challenged regulations bear a rational relation to legitimate penological interests. This suffices to sustain the regulation in question. See Turner v. Safley, 482 U.S. 78, 89 (1987). We have taken a similar approach in previous cases, such as Pell v. Procunier, 417 U.S. 817, 822 (1974), which we cited with approval in Turner. In Pell, we found it unnecessary to decide whether an asserted First Amendment right survived incarceration. Prison administrators had reasonably exercised their judgment as to the appropriate means of furthering penological goals, and that was the controlling rationale for our decision. We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. See, e. g., Pell, supra, at 826-827; Helms, supra, at 467; Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Jones, supra, at 126, 128; Turner, supra, at 85, 89; Block v. Rutherford, 468 U.S. 576, 588 (1984); Bell v. Wolfish, 441 U.S. 520, 562 (1979). The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it. See Jones, supra, at 128; O'Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987); Shaw, supra, at 232. Respondents have failed to do so here. In Turner we held that four factors are relevant in deciding whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge: whether the regulation has a "`valid, rational connection'" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation. 482 U.S., at 89-91. *133 Turning to the restrictions on visitation by children, we conclude that the regulations bear a rational relation to MDOC's valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury. The regulations promote internal security, perhaps the most legitimate of penological goals, see, e. g., Pell, supra, at 823, by reducing the total number of visitors and by limiting the disruption caused by children in particular. Protecting children from harm is also a legitimate goal, see, e. g., Block, supra, at 586-587. The logical connection between this interest and the regulations is demonstrated by trial testimony that reducing the number of children allows guards to supervise them better to ensure their safety and to minimize the disruptions they cause within the visiting areas. As for the regulation requiring children to be accompanied by a family member or legal guardian, it is reasonable to ensure that the visiting child is accompanied and supervised by those adults charged with protecting the child's best interests. Respondents argue that excluding minor nieces and nephews and children as to whom parental rights have been terminated bears no rational relationship to these penological interests. We reject this contention, and in all events it would not suffice to invalidate the regulations as to all non-contact visits. To reduce the number of child visitors, a line must be drawn, and the categories set out by these regulations are reasonable. Visits are allowed between an inmate and those children closest to him or her—children, grandchildren, and siblings. The prohibition on visitation by children as to whom the inmate no longer has parental rights is simply a recognition by prison administrators of a status determination made in other official proceedings. MDOC's regulation prohibiting visitation by former inmates bears a self-evident connection to the State's interest in maintaining prison security and preventing future crimes. *134 We have recognized that "communication with other felons is a potential spur to criminal behavior." Turner, supra, at 91-92. Finally, the restriction on visitation for inmates with two substance-abuse violations, a bar which may be removed after two years, serves the legitimate goal of deterring the use of drugs and alcohol within the prisons. Drug smuggling and drug use in prison are intractable problems. See, e. g., Bell, supra, at 559; Block, supra, at 586-587; Hudson v. Palmer, 468 U.S. 517, 527 (1984). Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose. In this regard we note that numerous other States have implemented similar restrictions on visitation privileges to control and deter substance-abuse violations. See Brief for State of Colorado et al. as Amici Curiae 4-9. Respondents argue that the regulation bears no rational connection to preventing substance abuse because it has been invoked in certain instances where the infractions were, in respondents' view, minor. Even if we were inclined, though, to substitute our judgment for the conclusions of prison officials concerning the infractions reached by the regulations, the individual cases respondents cite are not sufficient to strike down the regulations as to all noncontact visits. Respondents also contest the 2-year bar and note that reinstatement of visitation is not automatic even at the end of two years. We agree the restriction is severe. And if faced with evidence that MDOC's regulation is treated as a de facto permanent ban on all visitation for certain inmates, we might reach a different conclusion in a challenge to a particular application of the regulation. Those issues are not presented in this case, which challenges the validity of the restriction on noncontact visits in all instances. *135 Having determined that each of the challenged regulations bears a rational relationship to a legitimate penological interest, we consider whether inmates have alternative means of exercising the constitutional right they seek to assert. Turner, 482 U. S., at 90. Were it shown that no alternative means of communication existed, though it would not be conclusive, it would be some evidence that the regulations were unreasonable. That showing, however, cannot be made. Respondents here do have alternative means of associating with those prohibited from visiting. As was the case in Pell, inmates can communicate with those who may not visit by sending messages through those who are allowed to visit. 417 U.S., at 825. Although this option is not available to inmates barred all visitation after two violations, they and other inmates may communicate with persons outside the prison by letter and telephone. Respondents protest that letter writing is inadequate for illiterate inmates and for communications with young children. They say, too, that phone calls are brief and expensive, so that these alternatives are not sufficient. Alternatives to visitation need not be ideal, however; they need only be available. Here, the alternatives are of sufficient utility that they give some support to the regulations, particularly in a context where visitation is limited, not completely withdrawn. Another relevant consideration is the impact that accommodation of the asserted associational right would have on guards, other inmates, the allocation of prison resources, and the safety of visitors. See Turner, supra, at 90; Hudson, supra, at 526 (visitor safety). Accommodating respondents' demands would cause a significant reallocation of the prison system's financial resources and would impair the ability of corrections officers to protect all who are inside a prison's walls. When such consequences are present, we are "particularly deferential" to prison administrators' regulatory judgments. Turner, supra, at 90. *136 Finally, we consider whether the presence of ready alternatives undermines the reasonableness of the regulations. Turner does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid penological goal. 482 U.S., at 90-91. Respondents have not suggested alternatives meeting this high standard for any of the regulations at issue. We disagree with respondents' suggestion that allowing visitation by nieces and nephews or children for whom parental rights have been terminated is an obvious alternative. Increasing the number of child visitors in that way surely would have more than a negligible effect on the goals served by the regulation. As to the limitation on visitation by former inmates, respondents argue the restriction could be time limited, but we defer to MDOC's judgment that a longer restriction better serves its interest in preventing the criminal activity that can result from these interactions. Respondents suggest the duration of the restriction for inmates with substance-abuse violations could be shortened or that it could be applied only for the most serious violations, but these alternatives do not go so far toward accommodating the asserted right with so little cost to penological goals that they meet Turner's high standard. These considerations cannot justify the decision of the Court of Appeals to invalidate the regulation as to all noncontact visits. III Respondents also claim that the restriction on visitation for inmates with two substance-abuse violations is a cruel and unusual condition of confinement in violation of the Eighth Amendment. The restriction undoubtedly makes the prisoner's confinement more difficult to bear. But it does not, in the circumstances of this case, fall below the standards mandated by the Eighth Amendment. Much of *137 what we have said already about the withdrawal of privileges that incarceration is expected to bring applies here as well. Michigan, like many other States, uses withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline. This is not a dramatic departure from accepted standards for conditions of confinement. Cf. Sandin v. Conner, 515 U.S. 472, 485 (1995). Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur. See, e. g., Estelle v. Gamble, 429 U.S. 97 (1976); Rhodes v. Chapman, 452 U.S. 337 (1981). If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations. An individual claim based on indefinite withdrawal of visitation or denial of procedural safeguards, however, would not support the ruling of the Court of Appeals that the entire regulation is invalid. * * * The judgment of the Court of Appeals is reversed. It is so ordered.

The State of Michigan, by regulation, places certain restrictions on visits with prison inmates. The question before the Court is whether the regulations violate the substantive due process mandate of the Fourteenth Amendment, or the First or Eighth Amendments as applicable to the States through the Fourteenth Amendment. *129 I The population of Michigan's prisons increased in the early 1990's. More inmates brought more visitors, straining the resources available for prison supervision and control. In particular, prison officials found it more difficult to maintain order during visitation and to prevent smuggling or trafficking in drugs. Special problems were encountered with the increase in visits by children, who are at risk of seeing or hearing harmful conduct during visits and must be supervised with special care in prison visitation facilities. The incidence of substance abuse in the State's prisons also increased in this period. Drug and alcohol abuse by prisoners is unlawful and a direct threat to legitimate objectives of the corrections system, including rehabilitation, the maintenance of basic order, and the prevention of violence in the prisons. In response to these concerns, the Michigan Department of Corrections (MDOC or Department) revised its prison visitation policies in 1995, promulgating the regulations here at issue. One aspect of the Department's approach was to limit the visitors a prisoner is eligible to receive, in order to decrease the total number of visitors. Under MDOC's regulations, an inmate may receive visits only from individuals placed on an approved visitor list, except that qualified members of the clergy and attorneys on official business may visit without being listed. Mich. Admin. Code Rule 791.6609(2) (1999); Director's Office Mem. 1995-59 The list may include an unlimited number of members of the prisoner's immediate family and 10 other individuals the prisoner designates, subject to some restrictions. Rule 791.6609(2). Minors under the age of 18 may not be placed on the list unless they are the children, stepchildren, grandchildren, or siblings of the inmate. Rule 791.6609(2)(b);268a (West Supp. 2003). If an inmate's parental rights *130 have been terminated, the child may not be a visitor. Rule 791.6609(6)(a) (1999). A child authorized to visit must be accompanied by an adult who is an immediate family member of the child or of the inmate or who is the legal guardian of the child. Rule 791.6609(5); Mich. Dept. of Corrections Procedure OP-SLF/STF-05.03.140, p. 9 (effective date Sept. 15, 1999). An inmate may not place a former prisoner on the visitor list unless the former prisoner is a member of the inmate's immediate family and the warden has given prior approval. Rule 791.6609(7). The Department's revised policy also sought to control the widespread use of drugs and alcohol among prisoners. Prisoners who commit multiple substance-abuse violations are not permitted to receive any visitors except attorneys and members of the clergy. Rule 791.6609(11)(d). An inmate subject to this restriction may apply for reinstatement of visitation privileges after two years. Rule 791.6609(12). Reinstatement is within the warden's discretion. Respondents are prisoners, their friends, and their family members. They brought this action under Rev. Stat. 1979, 42 U.S. C. 1983, alleging that the restrictions upon visitation violate the First, Eighth, and Fourteenth Amendments. It was certified as a class action under Federal Rule of Civil Procedure 23. Inmates who are classified as the highest security risks, as determined by the MDOC, are limited to noncontact visitation. This case does not involve a challenge to the method for making that determination. By contrast to contact visitation, during which inmates are allowed limited physical contact with their visitors in a large visitation room, inmates restricted to noncontact visits must communicate with their visitors through a glass panel, the inmate and the visitor being on opposite sides of a booth. In some facilities the booths are located in or at one side of the same room used for contact visits. The case before us concerns the regulations as they pertain to noncontact visits. *131 The United States District Court for the Eastern District of Michigan agreed with the prisoners that the regulations pertaining to noncontact visits were invalid. The Sixth Circuit affirmed, and we granted certiorari, II The Court of Appeals agreed with the District Court that the restrictions on noncontact visits are invalid. This was error. We first consider the contention, accepted by the Court of Appeals, that the regulations infringe a constitutional right of association. We have said that the Constitution protects "certain kinds of highly personal relationships," And outside the prison context, there is some discussion in our cases of a right to maintain certain familial relationships, including association among members of an immediate family and association between grandchildren and grandparents. See ; This is not an appropriate case for further elaboration of those matters. The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration. See ; And, as our cases have established, freedom of association is among the rights least compatible with incarceration. See at -126; Some curtailment of that freedom must be expected in the prison context. We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners. We *132 need not attempt to explore or define the asserted right of association at any length or determine the extent to which it survives incarceration because the challenged regulations bear a rational relation to legitimate interests. This suffices to sustain the regulation in question. See We have taken a similar approach in previous cases, such as which we cited with approval in In we found it unnecessary to decide whether an asserted First Amendment right survived incarceration. Prison administrators had reasonably exercised their judgment as to the appropriate means of furthering goals, and that was the controlling rationale for our decision. We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. See, e. g., ; ; (19); ; at 85, ; ; The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it. See ; ; Respondents have failed to do so here. In we held that four factors are relevant in deciding whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge: whether the regulation has a "`valid, rational connection'" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation. 482 U.S., at -91. *133 Turning to the restrictions on visitation by children, we conclude that the regulations bear a rational relation to MDOC's valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury. The regulations promote internal security, perhaps the most legitimate of goals, see, e. g., by reducing the total number of visitors and by limiting the disruption caused by children in particular. Protecting children from harm is also a legitimate goal, see, e. g., The logical connection between this interest and the regulations is demonstrated by trial testimony that reducing the number of children allows guards to supervise them better to ensure their safety and to minimize the disruptions they cause within the visiting areas. As for the regulation requiring children to be accompanied by a family member or legal guardian, it is reasonable to ensure that the visiting child is accompanied and supervised by those adults charged with protecting the child's best interests. Respondents argue that excluding minor nieces and nephews and children as to whom parental rights have been terminated bears no rational relationship to these interests. We reject this contention, and in all events it would not suffice to invalidate the regulations as to all non-contact visits. To reduce the number of child visitors, a line must be drawn, and the categories set out by these regulations are reasonable. Visits are allowed between an inmate and those children closest to him or her—children, grandchildren, and siblings. The prohibition on visitation by children as to whom the inmate no longer has parental rights is simply a recognition by prison administrators of a status determination made in other official proceedings. MDOC's regulation prohibiting visitation by former inmates bears a self-evident connection to the State's interest in maintaining prison security and preventing future crimes. *134 We have recognized that "communication with other felons is a potential spur to criminal behavior." Finally, the restriction on visitation for inmates with two substance-abuse violations, a bar which may be removed after two years, serves the legitimate goal of deterring the use of drugs and alcohol within the prisons. Drug smuggling and drug use in prison are intractable problems. See, e. g., ; ; Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose. In this regard we note that numerous other States have implemented similar restrictions on visitation privileges to control and deter substance-abuse violations. See Brief for State of Colorado et al. as Amici Curiae 4-9. Respondents argue that the regulation bears no rational connection to preventing substance abuse because it has been invoked in certain instances where the infractions were, in respondents' view, minor. Even if we were inclined, though, to substitute our judgment for the conclusions of prison officials concerning the infractions reached by the regulations, the individual cases respondents cite are not sufficient to strike down the regulations as to all noncontact visits. Respondents also contest the 2-year bar and note that reinstatement of visitation is not automatic even at the end of two years. We agree the restriction is severe. And if faced with evidence that MDOC's regulation is treated as a de facto permanent ban on all visitation for certain inmates, we might reach a different conclusion in a challenge to a particular application of the regulation. Those issues are not presented in this case, which challenges the validity of the restriction on noncontact visits in all instances. *135 Having determined that each of the challenged regulations bears a rational relationship to a legitimate interest, we consider whether inmates have alternative means of exercising the constitutional right they seek to assert. Were it shown that no alternative means of communication existed, though it would not be conclusive, it would be some evidence that the regulations were unreasonable. That showing, however, cannot be made. Respondents here do have alternative means of associating with those prohibited from visiting. As was the case in inmates can communicate with those who may not visit by sending messages through those who are allowed to visit. Although this option is not available to inmates barred all visitation after two violations, they and other inmates may communicate with persons outside the prison by letter and telephone. Respondents protest that letter writing is inadequate for illiterate inmates and for communications with young children. They say, too, that phone calls are brief and expensive, so that these alternatives are not sufficient. Alternatives to visitation need not be ideal, however; they need only be available. Here, the alternatives are of sufficient utility that they give some support to the regulations, particularly in a context where visitation is limited, not completely withdrawn. Another relevant consideration is the impact that accommodation of the asserted associational right would have on guards, other inmates, the allocation of prison resources, and the safety of visitors. See ; Accommodating respondents' demands would cause a significant reallocation of the prison system's financial resources and would impair the ability of corrections officers to protect all who are inside a prison's walls. When such consequences are present, we are "particularly deferential" to prison administrators' regulatory judgments. *136 Finally, we consider whether the presence of ready alternatives undermines the reasonableness of the regulations. does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid goal. 482 U.S., -91. Respondents have not suggested alternatives meeting this high standard for any of the regulations at issue. We disagree with respondents' suggestion that allowing visitation by nieces and nephews or children for whom parental rights have been terminated is an obvious alternative. Increasing the number of child visitors in that way surely would have more than a negligible effect on the goals served by the regulation. As to the limitation on visitation by former inmates, respondents argue the restriction could be time limited, but we defer to MDOC's judgment that a longer restriction better serves its interest in preventing the criminal activity that can result from these interactions. Respondents suggest the duration of the restriction for inmates with substance-abuse violations could be shortened or that it could be applied only for the most serious violations, but these alternatives do not go so far toward accommodating the asserted right with so little cost to goals that they meet 's high standard. These considerations cannot justify the decision of the Court of Appeals to invalidate the regulation as to all noncontact visits. III Respondents also claim that the restriction on visitation for inmates with two substance-abuse violations is a cruel and unusual condition of confinement in violation of the Eighth Amendment. The restriction undoubtedly makes the prisoner's confinement more difficult to bear. But it does not, in the circumstances of this case, fall below the standards mandated by the Eighth Amendment. Much of *137 what we have said already about the withdrawal of privileges that incarceration is expected to bring applies here as well. Michigan, like many other States, uses withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline. This is not a dramatic departure from accepted standards for conditions of confinement. Cf. Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur. See, e. g., ; If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations. An individual claim based on indefinite withdrawal of visitation or denial of procedural safeguards, however, would not support the ruling of the Court of Appeals that the entire regulation is invalid. * * * The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Stevens

majority

Chicago v. Morales

https://www.courtlistener.com/opinion/118299/chicago-v-morales/

https://www.courtlistener.com/api/rest/v3/clusters/118299/

1998-069

In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang *46 members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. I Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.[1] The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "`the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " 177 Ill. 2d 440, 445, 687 N.E.2d 53, 58 (1997). Furthermore, the council stated that gang members "`establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas; and . . . [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present . . . .' " Ibid. It further found that "`loitering in public places by *47 criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that "`[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city "`has an interest in discouraging all persons from loitering in public places with criminal gang members.' " Ibid. The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place' " is a "`criminal street gang membe[r].' " Second, the persons must be "`loitering,' " which the ordinance defines as "`remain[ing] in any one place with no apparent purpose.' " Third, the officer must then order "`all' " of the persons to disperse and remove themselves "`from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid.[2] *48 Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.[3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,[4] and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a—67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated *49 areas." Id., at 68a—69a. The city, however, does not release the locations of these "designated areas" to the public.[5] II During the three years of its enforcement,[6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.[7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.[8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct *50 is prohibited, and it encourages arbitrary and capricious enforcement by police."[9] The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,[10] consolidated and affirmed other pending appeals in accordance with Youkhana,[11] and reversed the convictions of respondents Gutierrez, Morales, and others.[12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.[13] The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid. In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated *51 to cause harm.[14] "Moreover, the definition of `loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N.E.2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."[15] We granted certiorari, 523 U.S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague. III The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods."[16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt *52 that a law that directly prohibited such intimidating conduct would be constitutional,[17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague. We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.[18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.S. 352, 358 (1983). While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct *53 protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); Gregory v. Chicago, 394 U.S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U.S. 19, 23-25 (1989). On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.[19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972).[20]*54 Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U.S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).[21] *55 There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U.S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.[22] *56 Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement. IV "It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ." Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance—"to remain in any one place with no apparent purpose"—does not. It is difficult to imagine how *57 any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?[23] Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.[24] Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.[25] However, state *58 courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.[26] The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do."[27] We find this response unpersuasive for at least two reasons. First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.[28] If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U.S. 87, 90 *59 (1965).[29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.[30] Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U.S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395. Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally *60 vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U.S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U.S. 611, 614 (1971). V The broad sweep of the ordinance also violates "`the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she "shall"—order them to disperse. Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair notice, *61 see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose." As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.[31] "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U.S. 447, 455 (1905). Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang. Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons *62 to disperse under the ordinance.[32] Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene. Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent. It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,[33] or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.[34] It applies to everyone in the city *63 who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member. Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose. Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U.S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city *64 safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be. VI In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."[35] 177 Ill. 2d, at 459, 687 N.E.2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U.S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets. Accordingly, the judgment of the Supreme Court of Illinois is Affirmed. Justice O'Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment.

In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang *46 members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. I Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.[1] The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "`the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " Furthermore, the council stated that gang members "`establish control over identifiable areas by loitering in those areas and intimidating others from entering those areas; and [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present' " It further found that "`loitering in public places by *47 criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that "`[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city "`has an interest in discouraging all persons from loitering in public places with criminal gang members.' " The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place' " is a "`criminal street gang membe[r].' " Second, the persons must be "`loitering,' " which the ordinance defines as "`remain[ing] in any one place with no apparent purpose.' " Third, the officer must then order "`all' " of the persons to disperse and remove themselves "`from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. [2] *48 Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.[3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,[4] and establish detailed criteria for defining street gangs and membership in such gangs. at 66a—67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated *49 areas." at 68a—69a. The city, however, does not release the locations of these "designated areas" to the public.[5] II During the three years of its enforcement,[6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.[7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.[8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct *50 is prohibited, and it encourages arbitrary and capricious enforcement by police."[9] The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,[10] consolidated and affirmed other pending appeals in accordance with Youkhana,[11] and reversed the convictions of respondents Gutierrez, Morales, and others.[12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.[13] The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated *51 to cause harm.[14] "Moreover, the definition of `loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." -61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."[15] We granted certiorari, and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague. III The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods."[16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt *52 that a law that directly prohibited such intimidating conduct would be constitutional,[17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague. We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.[18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. 3 While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct *53 protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. ; Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.[19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. ; see also[20]*54 Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" (19), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).[21] *55 There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. ; Planned Parenthood of Central ; n. 3, 3-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman It is a criminal law that contains no mens rea requirement, see and infringes on constitutionally protected rights, see When vagueness permeates the text of such a law, it is subject to facial attack.[22] *56 Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement. IV "It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits" The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted but the definition of that term in this ordinance—"to remain in any one place with no apparent purpose"—does not. It is difficult to imagine how *57 any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?[23] Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.[24] Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.[25] However, state * courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.[26] The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do."[27] We find this response unpersuasive for at least two reasons. First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the of penal statutes." Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.[28] If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in[29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.[30] Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." at Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally *60 vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." V The broad sweep of the ordinance also violates "`the requirement that a legislature establish minimal guidelines to govern law enforcement.' " 461 U. S., at 3. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she "shall"—order them to disperse. Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." As we discussed in the context of fair notice, *61 see the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose." As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.[31] "The power to determine the of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang. Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons *62 to disperse under the ordinance.[32] Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene. Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent. It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,[33] or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.[34] It applies to everyone in the city *63 who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member. Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose. Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city *64 safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be. VI In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."[35] We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets. Accordingly, the judgment of the Supreme Court of Illinois is Affirmed. Justice O'Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment.

Justice O'Connor

concurring

Rose v. Rose

https://www.courtlistener.com/opinion/111884/rose-v-rose/

https://www.courtlistener.com/api/rest/v3/clusters/111884/

1986-095

I agree with the Court that Mr. Rose may be compelled to use his veterans' disability benefits to discharge his child support obligation. I would rest this conclusion, however, on a ground that the Court disdains — the distinction between familial support obligations and other debts. The Court apparently views Ridgway v. Ridgway, 454 U.S. 46 (1981), as an insuperable obstacle to acknowledging that this distinction makes the difference here. I disagree: while stare decisis concerns may counsel against overruling Ridgway's interpretation of the Servicemen's Group Life Insurance Act, I see no reason whatsoever to extend Ridgway's equation of business debts with family support obligations absent the clearest congressional direction to do so. Read in light of this *637 Nation's common law heritage, the language of this statute, like that in Ridgway, incorporates, rather than rejects, this distinction. The anti-attachment provision of 38 U.S. C. § 3101(a) says: "Payments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payment made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." In my view, the bar against "levy, attachment, or seizure" is simply a means of enforcing the "exempt[ion] from the claims of creditors." The plain intent of § 3101(a) is to protect the veteran and his family against the claims of creditors. It is not intended to protect the veteran against claims by his family. As JUSTICE STEVENS explained in dissent in Ridgway, Congress simply intended: " `[T]o relieve the person exempted from the pressure of claims hostile to his dependents' essential needs as well as his own personal ones, not to relieve him of familial obligations and destroy what may be the family's last and only security, short of public relief.' " 454 U.S., at 76, quoting Schlaefer v. Schlaefer, 71 Ohio App. D. C. 350, 358, 112 F.2d 177, 185 (1940) (per Rutledge, J.). See also 454 U.S., at 68 (POWELL, J., dissenting). Our Anglo-American tradition accords a special sanctity to the support obligation. Unlike other debts, for example, the obligation to support spouse and child is enforced on threat of contempt. These obligations, moreover, may not be discharged in bankruptcy. 11 U.S. C. § 523(a)(5). Indeed, even before the bankruptcy laws specifically excepted the *638 support obligation from the discharge, this Court inferred such an exception, explaining the difference between a support obligation and other debts: "We think the reasoning of [Audubon v. Shufeldt, 181 U.S. 575 (1901),] recognizes the doctrine that a decree awarding alimony to the wife or children, or both, is not a debt which has been put in the form of a judgment, but is rather a legal means for enforcing the obligation of the husband and father to support and maintain his wife and children. He owes this duty not because of any contractual obligation or as a debt due from him to the wife, but because of the policy of the law which imposes the obligation upon the husband. The law interferes when the husband neglects or refuses to discharge this duty and enforces it against him by means of legal proceedings. ..... "The obligation continues after the discharge in bankruptcy as well as before, and is no more than the duty devolved by the law upon the husband to support his children and is not a debt in any just sense." Wetmore v. Markoe, 196 U.S. 68, 74-76 (1904). Particularly relevant is the fact that the common law generally will not enforce similar anti-attachment provisions against a family member's claim for support. In discussing the very similar anti-attachment provision at issue in Ridgway v. Ridgway, supra, at 74, JUSTICE STEVENS noted in dissent: "The language used in the `anti-attachment' provision of the [Servicemen's Group Life Insurance Act] is comparable to that found in so-called `spendthrift clauses' that have protected trust beneficiaries from the claims of commercial creditors for centuries. As stated by Dean Griswold, `[i]t is widely held, however, that even where such trusts are generally valid, the interest of the beneficiary may be reached for the support of his wife or *639 children, or for the payment of alimony to his wife.' E. Griswold, Spendthrift Trusts 389 (2d ed. 1947)." See also id., at 73-77 (STEVENS, J., dissenting). As the Court acknowledges, ante, at 631-632, until Ridgway, we had carefully refused to hold that anti-attachment provisions similar to § 3101(a) shield the beneficiary from the support claims of his spouse and children. Wissner v. Wissner, 338 U.S. 655, 659-660 (1950); Hisquierdo v. Hisquierdo, 439 U.S. 572, 587 (1979). In addition, state courts all along have asserted that § 3101(a), its predecessors, and similar statutes do not make the support obligation unenforceable. Mims v. Mims, 442 So. 2d 102, 103-104 (Ala. Civ. App. 1983); Smolin v. First Fidelity Savings & Loan Assn., 238 Md. 386, 392-394, 209 A.2d 546, 549-550 (1965); Dillard v. Dillard, 341 S.W.2d 668, 675 (Tex. Civ. App. 1960); Voelkel v. Tohulka, 236 Ind. 588, 592-593, 141 N.E.2d 344, 346, cert. denied, 355 U.S. 891 (1957); Pishue v. Pishue, 32 Wash. 2d 750, 754-756, 203 P.2d 1070, 1072-1073 (1949); Hannah v. Hannah, 191 Ga. 134, 137-139, 11 S.E.2d 779, 781-782 (1940); Gaskins v. Security-First National Bank of Los Angeles, 30 Cal. App. 2d 409, 417-418, 86 P.2d 681, 684-685 (1939); In re Gardner, 220 Wis. 490, 493, 264 N.W. 643, 647 (1936); Stirgus v. Stirgus, 172 Miss. 337, 341, 160 So. 285, 286 (1935); but cf. Ridgway v. Ridgway, 454 U. S., at 62, n. 11 (citing cases). In short, the support obligation has always been granted a special place in our law. While the broad language of § 3101(a) seems clearly meant to bar the ordinary creditor's attachment, I cannot find, in light of this Nation's common law tradition, that the language of § 3101(a) expresses anything like the unequivocal congressional intent necessary to bar family members from enforcing the veteran's support obligation. The contrary holding in Ridgway is hopelessly anomalous, and should be relegated to the status of "a derelict on the waters of the law." Lambert v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting). Accordingly, *640 I concur in Parts I, II-A, II-B, II-D, and III of the Court's opinion, and object only to its failure to rest its holding squarely on the unique force of the support obligation. JUSTICE SCALIA, concurring in part and concurring in the judgment. I concur in the judgment of the Court that none of the statutes cited by appellant or the United States bars the Tennessee court from basing child support awards on a parent's veterans' benefits, or from enforcing such an award by civil contempt. I cannot, however, join much of the Court's analysis, which unnecessarily, and in my view erroneously, suggests that certain state actions not before us here are permissible because they do not frustrate the purposes of the federal provisions. While incompatibility with the purpose of a federal statute may invalidate a state law that does not violate its text, I know of no precedent for the proposition, which these portions of the opinion adopt, that compatibility with the purpose of a federal statute can save a state law that violates its text. Such a doctrine in effect asserts a power to narrow statutory texts, insofar as their pre-emptive effect is concerned, so as to make them more precisely tailored to the purpose that the Court perceives. I Title 38 U.S. C. § 3107(a)(2) (1982 ed., Supp. III) provides "All or any part of the compensation . . . payable on account of any veteran may . . . if the veteran's children are not in the custody of the veteran, be apportioned as may be prescribed by the Administrator." I agree with the Court that the language of this statute (1) gives the Administrator only discretionary authority to make apportionments; (2) does not on its face bar States from using veterans' benefits as the basis for child support orders where no such apportionment has been made or denied; and (3) should not be construed to have that as its purpose, in light of the presumption against federal intrusion into the field of family law. Ante, at 626-628. *641 I think those conclusions quite adequate to support the holding that § 3107 does not bar Tennessee from entering the order at issue here. I would not reach the question whether the State may enter a support order that conflict with an apportionment ruling made by the Administrator, or whether the Administrator may make an apportionment ruling that conflicts with a support order entered by the State. Ante, at 627. Those questions are not before us, since the Administrator has made no such ruling. Moreover, I am not at all certain that the Court answers those questions correctly. I am not persuaded that if the Administrator makes an apportionment ruling, a state court may enter a conflicting child support order. It would be extraordinary to hold that a federal officer's authorized allocation of federally granted funds between two claimants can be overridden by a state official. Congress could, I suppose, enact such a peculiar scheme, but it is at least not clear that it has done so here. Moreover, while I agree with the Court that one possible use of the Administrator's apportionment authority is to facilitate direct, separate payments of benefits to a spouse in accordance with a previous state-court order, see ante, at 626, I see nothing in the statute to indicate that is the only possible use. II For related reasons, I also disagree with the Court's construction of 38 U.S. C. § 211(a), which provides that "[d]ecisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents . . . shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision." The Court finds this inapplicable because it does not explicitly exclude state-court jurisdiction, as it does federal; ante, at 629, and because its underlying purpose of "achiev[ing] uniformity in the administration of *642 veterans' benefits and protect[ing] the Administrator from expensive and time-consuming litigation," ibid., would not be impaired. I would find it inapplicable for a much simpler reason. Had the Administrator granted or denied an application to apportion benefits, state-court action providing a contrary disposition would arguably conflict with the language of § 211 making his decisions "final and conclusive" — and if so would in my view be pre-empted, regardless of the Court's perception that it does not conflict with the "purposes" of § 211. But there is absolutely no need to pronounce upon that issue here. Because the Administrator can make an apportionment only upon receipt of a claim, Veterans' Administration Manual M21-1, ch. 26, ¶ 26.01 (Aug. 1, 1979), and because no claim for apportionment of the benefits at issue here has ever been filed, the Administrator has made no "decision" to which finality and conclusiveness can attach. See Johnson v. Robison, 415 U.S. 361, 367-368 (1974) (§ 211 does not bar claim that a statute regarding benefits is unconstitutional because Administrator has made no decision as to that issue). The Court again expresses views on a significant issue that is not presented. III Finally, 38 U.S. C. § 3101(a) provides that "[p]ayments of benefits . . . under any law administered by the Veterans' Administration . . . made to, or on account of, a beneficiary. . . shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." The Court holds that this statute does not apply to attachments, levies, or seizures to enforce child support obligations — again on the basis that these actions would not frustrate the "purpose" of the provision. It reaches that conclusion by deducing, on the basis of legislative history and the apportionment provision, that the "purpose" of veterans' disability benefits is "in part, . . . the support of veterans' dependents." Ante, at 631. The *643 words of § 3101(a), however, extend to all use of the enumerated judicial processes ("attachment, levy, or seizure by any legal or equitable process whatever"), and I see no basis for consulting "purpose" to exclude, with no textual justification, some (but not all) state proceedings. Moreover, even if that mode of analysis is legitimate, it is not clear to me that depriving a veteran of benefits in favor of his children does not conflict with the statute's purpose. Little is proved by the statements in the House and Senate Reports that veterans' disability benefits are intended to compensate for impaired earning capacity and to provide reasonable compensation for disabled veterans and their families, ante, at 630, citing H. R. Rep. No. 96-1155, p. 4 (1980) and S. Rep. No. 98-604, p. 24 (1984); that intent would still be effectuated in the vast majority of situations (which is all that is needed to explain the statements) whether or not attachment for child support is allowed. These excerpts are extremely weak support for the proposition that a veteran's family has a right in the benefits, enforceable in state courts, as against the veteran — a proposition which, as JUSTICE O'CONNOR's concurrence notes, rests uneasily with our decision in Ridgway v. Ridgway, 454 U.S. 46 (1981). Ante, at 631. And the apportionment statute only demonstrates, at most, that Congress intended to permit children access to those benefits by means of an order of the Administrator, but says nothing about whether state courts may garnish, attach, or seize them on behalf of a veteran's children. In light of § 3101(a)'s explicit prohibition of such orders, I am reluctant to find authority to issue them. Once again, however, this issue need not have been reached. Neither an order basing the amount of a veteran's child support obligation in part on his disability benefits nor an order that he satisfy that obligation on pain of being held in contempt is an attachment, garnishment, or seizure. Neither directs the disposition of the veteran's disability benefits or even specifically requires him to use them to satisfy his obligation. *644 Cf. Wissner v. Wissner, 338 U.S. 655, 659 (1950) (order directing the diversion of future insurance proceeds as soon as they are made constitutes "seizure" of those proceeds). In other words, child support orders operate on the veteran's person, not on his property. They therefore are not prohibited by § 3101(a), and accordingly do not run afoul of the Supremacy Clause. I may add that this distinction between moving against property and moving against the veteran's person is not a technical and irrational one. It is one thing to prohibit a State from attaching a veteran's disability benefits to satisfy routine debts, but quite another to prohibit it from compelling him to satisfy an obligation so important to the public policy of the State that it is exempt from the State's constitutional bar on imprisonment for debt in civil cases, see Tenn. Const., Art. I, § 18; Brown v. Brown, 156 Tenn. 619, 625-626, 4 S.W.2d 345, 346-347 (1928), permitting imprisonment to be imposed for default. See Tenn. Code. Ann. § 36-5-104 (1984). * * * In sum, with respect to three of the four statutes at issue, it seems to me the Court's opinion reaches important issues that need not be decided; resolves them by a process that assumes a broad power to limit clear text on the basis of apparent congressional purpose; and even on that assumption may resolve them incorrectly. With regard to the remaining statute, 42 U.S. C. § 659(a), I agree with the analysis contained in Part II-D of the Court's opinion.

I agree with the Court that Mr. Rose may be compelled to use his veterans' disability benefits to discharge his child support obligation. I would rest this conclusion, however, on a ground that the Court disdains — the distinction between familial support obligations and other debts. The Court apparently views as an insuperable obstacle to acknowledging that this distinction makes the difference here. I disagree: while stare decisis concerns may counsel against overruling 's interpretation of the Servicemen's Group Life Insurance Act, I see no reason whatsoever to extend 's equation of business debts with family support obligations absent the clearest congressional direction to do so. Read in light of this *637 Nation's common law heritage, the language of this statute, like that in incorporates, rather than rejects, this distinction. The anti-attachment provision of 38 U.S. C. 3101(a) says: "Payments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payment made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." In my view, the bar against "levy, attachment, or seizure" is simply a means of enforcing the "exempt[ion] from the claims of creditors." The plain intent of 3101(a) is to protect the veteran and his family against the claims of creditors. It is not intended to protect the veteran against claims by his family. As JUSTICE STEVENS explained in dissent in Congress simply intended: " `[T]o relieve the person exempted from the pressure of claims hostile to his dependents' essential needs as well as his own personal ones, not to relieve him of familial obligations and destroy what may be the family's last and only security, short of public relief.' " quoting See Our Anglo-American tradition accords a special sanctity to the support obligation. Unlike other debts, for example, the obligation to support spouse and child is enforced on threat of contempt. These obligations, moreover, may not be discharged in bankruptcy. 11 U.S. C. 523(a)(5). Indeed, even before the bankruptcy laws specifically excepted the *638 support obligation from the discharge, this Court inferred such an exception, explaining the difference between a support obligation and other debts: "We think the reasoning of] recognizes the doctrine that a decree awarding alimony to the wife or children, or both, is not a debt which has been put in the form of a judgment, but is rather a legal means for enforcing the obligation of the husband and father to support and maintain his wife and children. He owes this duty not because of any contractual obligation or as a debt due from him to the wife, but because of the policy of the law which imposes the obligation upon the husband. The law interferes when the husband neglects or refuses to discharge this duty and enforces it against him by means of legal proceedings. "The obligation continues after the discharge in bankruptcy as well as before, and is no more than the duty devolved by the law upon the husband to support his children and is not a debt in any just sense." Particularly relevant is the fact that the common law generally will not enforce similar anti-attachment provisions against a family member's claim for support. In discussing the very similar anti-attachment provision at issue in JUSTICE STEVENS noted in dissent: "The language used in the `anti-attachment' provision of the [Servicemen's Group Life Insurance Act] is comparable to that found in so-called `spendthrift clauses' that have protected trust beneficiaries from the claims of commercial creditors for centuries. As stated by Dean Griswold, `[i]t is widely held, however, that even where such trusts are generally valid, the interest of the beneficiary may be reached for the support of his wife or *639 children, or for the payment of alimony to his wife.' E. Griswold, Spendthrift Trusts 389 (2d ed. 1947)." See As the Court acknowledges, ante, at 631-632, until we had carefully refused to hold that anti-attachment provisions similar to 3101(a) shield the beneficiary from the support claims of his spouse and children. ; In addition, state courts all along have asserted that 3101(a), its predecessors, and similar statutes do not make the support obligation unenforceable. ; ; ; ; ; ; ; In re Gardner, ; ; but cf. n. 11 (citing cases). In short, the support obligation has always been granted a special place in our law. While the broad language of 3101(a) seems clearly meant to bar the ordinary creditor's attachment, I cannot find, in light of this Nation's common law tradition, that the language of 3101(a) expresses anything like the unequivocal congressional intent necessary to bar family members from enforcing the veteran's support obligation. The contrary holding in is hopelessly anomalous, and should be relegated to the status of "a derelict on the waters of the law." Accordingly, *640 I concur in Parts I, II-A, II-B, II-D, and III of the Court's opinion, and object only to its failure to rest its holding squarely on the unique force of the support obligation. JUSTICE SCALIA, concurring in part and concurring in the judgment. I concur in the judgment of the Court that none of the statutes cited by appellant or the United States bars the Tennessee court from basing child support awards on a parent's veterans' benefits, or from enforcing such an award by civil contempt. I cannot, however, join much of the Court's analysis, which unnecessarily, and in my view erroneously, suggests that certain state actions not before us here are permissible because they do not frustrate the purposes of the federal provisions. While incompatibility with the purpose of a federal statute may invalidate a state law that does not violate its text, I know of no precedent for the proposition, which these portions of the opinion adopt, that compatibility with the purpose of a federal statute can save a state law that violates its text. Such a doctrine in effect asserts a power to narrow statutory texts, insofar as their pre-emptive effect is concerned, so as to make them more precisely tailored to the purpose that the Court perceives. I Title 38 U.S. C. 3107(a)(2) (1982 ed., Supp. III) provides "All or any part of the compensation payable on account of any veteran may if the veteran's children are not in the custody of the veteran, be apportioned as may be prescribed by the Administrator." I agree with the Court that the language of this statute (1) gives the Administrator only discretionary authority to make apportionments; (2) does not on its face bar States from using veterans' benefits as the basis for child support orders where no such apportionment has been made or denied; and (3) should not be construed to have that as its purpose, in light of the presumption against federal intrusion into the field of family law. Ante, at 626-628. *641 I think those conclusions quite adequate to support the holding that 3107 does not bar Tennessee from entering the order at issue here. I would not reach the question whether the State may enter a support order that conflict with an apportionment ruling made by the Administrator, or whether the Administrator may make an apportionment ruling that conflicts with a support order entered by the State. Ante, at 627. Those questions are not before us, since the Administrator has made no such ruling. Moreover, I am not at all certain that the Court answers those questions correctly. I am not persuaded that if the Administrator makes an apportionment ruling, a state court may enter a conflicting child support order. It would be extraordinary to hold that a federal officer's authorized allocation of federally granted funds between two claimants can be overridden by a state official. Congress could, I suppose, enact such a peculiar scheme, but it is at least not clear that it has done so here. Moreover, while I agree with the Court that one possible use of the Administrator's apportionment authority is to facilitate direct, separate payments of benefits to a spouse in accordance with a previous state-court order, see ante, at 626, I see nothing in the statute to indicate that is the only possible use. II For related reasons, I disagree with the Court's construction of 38 U.S. C. 211(a), which provides that "[d]ecisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision." The Court finds this inapplicable because it does not explicitly exclude state-court jurisdiction, as it does federal; ante, at 629, and because its underlying purpose of "achiev[ing] uniformity in the administration of *642 veterans' benefits and protect[ing] the Administrator from expensive and time-consuming litigation," ib would not be impaired. I would find it inapplicable for a much simpler reason. Had the Administrator granted or denied an application to apportion benefits, state-court action providing a contrary disposition would arguably conflict with the language of 211 making his decisions "final and conclusive" — and if so would in my view be pre-empted, regardless of the Court's perception that it does not conflict with the "purposes" of 211. But there is absolutely no need to pronounce upon that issue here. Because the Administrator can make an apportionment only upon receipt of a claim, Veterans' Administration Manual M21-1, ch. 26, ¶ 26.01 and because no claim for apportionment of the benefits at issue here has ever been filed, the Administrator has made no "decision" to which finality and conclusiveness can attach. See ( 211 does not bar claim that a statute regarding benefits is unconstitutional because Administrator has made no decision as to that issue). The Court again expresses views on a significant issue that is not presented. III Finally, 38 U.S. C. 3101(a) provides that "[p]ayments of benefits under any law administered by the Veterans' Administration made to, or on account of, a beneficiary. shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." The Court holds that this statute does not apply to attachments, levies, or seizures to enforce child support obligations — again on the basis that these actions would not frustrate the "purpose" of the provision. It reaches that conclusion by deducing, on the basis of legislative history and the apportionment provision, that the "purpose" of veterans' disability benefits is "in part, the support of veterans' dependents." Ante, at 631. The *643 words of 3101(a), however, extend to all use of the enumerated judicial processes ("attachment, levy, or seizure by any legal or equitable process whatever"), and I see no basis for consulting "purpose" to exclude, with no textual justification, some (but not all) state proceedings. Moreover, even if that mode of analysis is legitimate, it is not clear to me that depriving a veteran of benefits in favor of his children does not conflict with the statute's purpose. Little is proved by the statements in the House and Senate Reports that veterans' disability benefits are intended to compensate for impaired earning capacity and to provide reasonable compensation for disabled veterans and their families, ante, at 630, citing H. R. Rep. No. 96-1155, p. 4 (1980) and S. Rep. No. 98-604, p. 24 (1984); that intent would still be effectuated in the vast majority of situations (which is all that is needed to explain the statements) whether or not attachment for child support is allowed. These excerpts are extremely weak support for the proposition that a veteran's family has a right in the benefits, enforceable in state courts, as against the veteran — a proposition which, as JUSTICE O'CONNOR's concurrence notes, rests uneasily with our decision in Ante, at 631. And the apportionment statute only demonstrates, at most, that Congress intended to permit children access to those benefits by means of an order of the Administrator, but says nothing about whether state courts may garnish, attach, or seize them on behalf of a veteran's children. In light of 3101(a)'s explicit prohibition of such orders, I am reluctant to find authority to issue them. Once again, however, this issue need not have been reached. Neither an order basing the amount of a veteran's child support obligation in part on his disability benefits nor an order that he satisfy that obligation on pain of being held in contempt is an attachment, garnishment, or seizure. Neither directs the disposition of the veteran's disability benefits or even specifically requires him to use them to satisfy his obligation. *644 Cf. In other words, child support orders operate on the veteran's person, not on his property. They therefore are not prohibited by 3101(a), and accordingly do not run afoul of the Supremacy Clause. I may add that this distinction between moving against property and moving against the veteran's person is not a technical and irrational one. It is one thing to prohibit a State from attaching a veteran's disability benefits to satisfy routine debts, but quite another to prohibit it from compelling him to satisfy an obligation so important to the public policy of the State that it is exempt from the State's constitutional bar on imprisonment for debt in civil cases, see Tenn. Const., Art. I, 18; -347 permitting imprisonment to be imposed for default. See Tenn. Code. Ann. 36-5-104 (1984). * * * In sum, with respect to three of the four statutes at issue, it seems to me the Court's opinion reaches important issues that need not be decided; resolves them by a process that assumes a broad power to limit clear text on the basis of apparent congressional purpose; and even on that assumption may resolve them incorrectly. With regard to the remaining statute, 42 U.S. C. (a), I agree with the analysis contained in Part II-D of the Court's opinion.

Justice Stewart

dissenting

United States v. LaSalle Nat. Bank

https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/

https://www.courtlistener.com/api/rest/v3/clusters/109901/

1977-119

This case is here only because of judicial misreadings of a passage in the Court's opinion in Donaldson v. United States, 400 U.S. 517, 533. That passage has been read by the federal courts, in this case and in others, to mean that a summons *320 under § 7602 of the Internal Revenue Code, 26 U.S. C. § 7602, is improper if issued in aid of an investigation solely for criminal purposes.[1] Yet the statute itself contains no such limitation, and the Donaldson opinion in fact clearly stated that there are but two limits upon enforcement of such a summons: It must be "issued in good faith and prior to a recommendation for criminal prosecution." 400 U.S., at 536. I adhere to that view. The Court concedes that the task of establishing the "purpose" of an individual agent is "undesirable and unrewarding." Ante, at 316. Yet the burden it imposes today—to discover the "institutional good faith" of the entire Internal Revenue Service—is, in my view, even less desirable and less rewarding. The elusiveness of "institutional good faith" as described by the Court can produce little but endless discovery proceedings and ultimate frustration of the fair administration of the Internal Revenue Code. In short, I fear that the Court's new criteria will prove wholly unworkable. Earlier this year the Court of Appeals for the Second Circuit had occasion to deal with the issue now before us in the case of United States v. Morgan Guaranty Trust Co., 572 F.2d 36. Judge Friendly's perceptive opinion for his court in that case read the Donaldson opinion correctly: This Court was there "laying down an objective test, `prior to a recommendation for criminal prosecution,' that would avoid a need for determining the thought processes of special agents; and . . . the `good faith' requirement of the holding related to such wholly different matters as those mentioned in" the case of United States v. Powell, 379 U.S. 48.[2] "Such a view would . . . be *321 consistent with the only rationale that has ever been offered for preventing an otherwise legitimate use of an Internal Revenue Service third party summons, namely that Congress could not have intended the statute to trench on the power of the grand jury or to broaden the Government's right to discovery in a criminal case . . . ." 572 F.2d, at 41-42. Instead of standing by the objective and comparatively bright-line test of Donaldson, as now clarified, the Court today further muddies the waters. It does not even attempt to identify the source of the requirements it now adds to enforcement proceedings under §§ 7402 (b) and 7604 (a) of the Code. These requirements are not suggested by anything in the statutes themselves, and nobody suggests that they derive from the Constitution. They are simply imposed by the Court from out of nowhere, and they seem to me unjustified, unworkable, and unwise. I would reverse the judgment, not for further hearings in the District Court, but with instructions to order enforcement of the summons.

This case is here only because of judicial misreadings of a passage in the Court's opinion in That passage has been read by the federal courts, in this case and in others, to mean that a summons *320 under 7602 of the Internal Revenue Code, 26 U.S. C. 7602, is improper if issued in aid of an investigation solely for criminal purposes.[1] Yet the statute itself contains no such limitation, and the Donaldson opinion in fact clearly stated that there are but two limits upon enforcement of such a summons: It must be "issued in good faith and prior to a recommendation for criminal prosecution." I adhere to that view. The Court concedes that the task of establishing the "purpose" of an individual agent is "undesirable and unrewarding." Ante, at 316. Yet the burden it imposes today—to discover the "institutional good faith" of the entire Internal Revenue Service—is, in my view, even less desirable and less rewarding. The elusiveness of "institutional good faith" as described by the Court can produce little but endless discovery proceedings and ultimate frustration of the fair administration of the Internal Revenue Code. In short, I fear that the Court's new criteria will prove wholly unworkable. Earlier this year the Court of Appeals for the Second Circuit had occasion to deal with the issue now before us in the case of United Judge Friendly's perceptive opinion for his court in that case read the Donaldson opinion correctly: This Court was there "laying down an objective test, `prior to a recommendation for criminal prosecution,' that would avoid a need for determining the thought processes of special agents; and the `good faith' requirement of the holding related to such wholly different matters as those mentioned in" the case of United[2] "Such a view would be *321 consistent with the only rationale that has ever been offered for preventing an otherwise legitimate use of an Internal Revenue Service third party summons, namely that Congress could not have intended the statute to trench on the power of the grand jury or to broaden the Government's right to discovery in a criminal case" -42. Instead of standing by the objective and comparatively bright-line test of Donaldson, as now clarified, the Court today further muddies the waters. It does not even attempt to identify the source of the requirements it now adds to enforcement proceedings under 7402 (b) and 7604 (a) of the Code. These requirements are not suggested by anything in the statutes themselves, and nobody suggests that they derive from the Constitution. They are simply imposed by the Court from out of nowhere, and they seem to me unjustified, unworkable, and unwise. I would reverse the judgment, not for further hearings in the District Court, but with instructions to order enforcement of the summons.

Justice Roberts

dissenting

Kaley v. United States

https://www.courtlistener.com/opinion/2654756/kaley-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/2654756/

2013-019

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself. We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense—the attorney he selects and trusts—by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an oppor- tunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent. I The facts of this case are important. They highlight the significance to a defendant of being able to hire his counsel of choice, and the potential for unfairness inherent in giving the prosecutor the discretion to take that right away. Kerri Kaley worked as a sales representative for a Johnson & Johnson subsidiary, selling prescription medi- cal devices. Kaley and other sales representatives occa- sionally obtained outmoded or surplus devices from staff 2 KALEY v. UNITED STATES ROBERTS, C. J., dissenting members at the medical facilities they served, when, for example, those devices were no longer needed because they had been superseded by newer models. Kaley sold the unwanted devices to a Florida company, dividing the proceeds among the sales representatives. Kaley learned in January 2005 that a federal grand jury was investigating those activities as a conspiracy to sell stolen prescription medical devices. Kaley and her hus- band (who allegedly helped ship the products to Florida) retained counsel, who immediately set to work preparing their defense against any impending charges. Counsel regularly discussed the investigation with the Kaleys, helped review documents demanded by the grand jury, and met with prosecutors in an attempt to ward off an indictment. Nonetheless preparing for the worst, the Kaleys applied for a $500,000 equity line of credit on their home to pay estimated legal fees associated with a trial. They used that money to purchase a $500,000 certificate of deposit, which they set aside until it would be needed to pay their attorneys for the trial. In February 2007, the grand jury returned a seven- count indictment charging the Kaleys and another sales representative, Jennifer Gruenstrass, with violations of federal law. The indictment alleged that a “money judg- ment” of over $2 million and the $500,000 certificate of deposit were subject to forfeiture under 18 U.S. C. §981(a)(1)(C) because those assets constituted “proceeds” of the alleged crimes. Armed with this indictment, the prosecution obtained an ex parte order pursuant to 21 U.S. C. §853(e), thereby freezing all of the Kaleys’ assets listed in the indictment, including the certificate of deposit set aside for legal fees. The Government did not seek to freeze any of Gruenstrass’s assets. The Kaleys moved to vacate the order, requesting a hearing at which they could argue that there was no prob- able cause to believe their assets were forfeitable, because Cite as: 571 U. S. ____ (2014) 3 ROBERTS, C. J., dissenting their alleged conduct was not criminal. They argued they were entitled to such a hearing because the restraining order targeted funds they needed and had set aside to retain for trial the same counsel who had been preparing their defense for two years. And they contended that the prosecution was baseless because the Government could not identify anyone who claimed ownership of the medical devices alleged to have been “stolen.” During a telephone conference with a Magistrate Judge on the motion, the prosecution conceded that it had been able to trace only $140,000 in allegedly criminal proceeds to the Kaleys, which led the Magistrate Judge to question the lawfulness of restraining the listed assets. Just two business days after that conference, the Gov- ernment obtained a superseding indictment that added a count of conspiracy to commit money laundering under 18 U.S. C. §1956(h). Adding that charge enabled the Gov- ernment to proceed under a much broader forfeiture provi- sion than the one in the original indictment. While the civil forfeiture provision in §981(a)(1)(C) authorized forfeit- ure of property that “constitutes or is derived from pro- ceeds traceable to” a qualifying criminal violation, the criminal forfeiture provision now invoked by the Govern- ment—§982(a)(1)—authorizes forfeiture of property “in- volved in” a qualifying offense, or “any property traceable to such property.” The superseding indictment alleged that a sum of more than $2 million, the certificate of de- posit reserved to pay legal expenses, and now the Kaleys’ home were subject to forfeiture. And again, the Govern- ment sought an order freezing substantially all those assets. The Kaleys objected, repeating the arguments they had previously raised, and also contending that the prosecu- tors were being vindictive in adding the money laundering charge and seeking broader forfeiture. The District Court nonetheless entered the broader order requested by the 4 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Government, and the restraint on the Kaleys’ assets re- mains in place. While the Kaleys’ appeal from that denial was pending, the Government proceeded to trial separately against their codefendant Gruenstrass. As the Government had not sought to freeze Gruenstrass’s assets, she was repre- sented by her chosen counsel. Her counsel argued that the Government was pitching a fraud without a victim, be- cause no Government witness took the stand to claim ownership of the allegedly stolen devices. The jury acquit- ted Gruenstrass on all charges in less than three hours—a good omen for the Kaleys and their counsel as they pre- pared for their own trial. II The issues at stake here implicate fundamental consti- tutional principles. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his de- fence.” In many ways, this is the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys. United States v. Cronic, 466 U.S. 648, 653–654 (1984). And more than 80 years ago, we found it “hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53 (1932). Indeed, we recently called the “right to select counsel of one’s choice . . . . the root meaning of the constitutional guarantee” of the Sixth Amendment. United States v. Gonzalez-Lopez, 548 U.S. 140, 147–148 (2006). The Amendment requires “that a particular guarantee of fair- ness be provided—to wit, that the accused be defended by the counsel he believes to be best.” Id., at 146. An individual’s right to counsel of choice is violated “whenever the defendant’s choice is wrongfully denied,” and such Cite as: 571 U. S. ____ (2014) 5 ROBERTS, C. J., dissenting error “pervades the entire trial.” Id., at 150. A violation of this right is therefore a “structural error,” ibid.; that is, one of the very few kinds of errors that “undermine the fairness of a criminal proceeding as a whole.” United States v. Davila, 569 U. S. ___, ___ (2013) (slip op., at 12). It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest. Wheat v. United States, 486 U.S. 153, 159 (1988). And a district court need not always shuffle its calendar to accommodate a defendant’s preferred coun- sel if it has legitimate reasons not to do so. Morris v. Slappy, 461 U.S. 1, 11–12 (1983). But none of those limitations is imposed at the unreviewable discretion of a prosecutor—the party who wants the defendant to lose at trial. This Court has held that the prosecution may freeze assets a defendant needs to retain his counsel of choice upon “a finding of probable cause to believe that the assets are forfeitable.” United States v. Monsanto, 491 U.S. 600, 615 (1989). The Kaleys do not challenge that holding here. But the Court in Monsanto acknowledged and re- served the crucial question whether a defendant had the right to be heard before the Government could take such action. Id., at 615, n. 10.1 There was good reason for that caution. The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire pro- ceeding. “A fair trial in a fair tribunal is a basic require- —————— 1 Because the District Court in Monsanto had imposed the restraining order after an “extensive, 4-day hearing on the question of probable cause,” it was “pointless” for this Court to decide whether a hearing was required to “adequately establish[ ]” probable cause. 491 U.S., at 615, n. 10, 616. 6 KALEY v. UNITED STATES ROBERTS, C. J., dissenting ment of due process.” In re Murchison, 349 U.S. 133, 136 (1955). Issues concerning the denial of counsel of choice implicate the overall fairness of the trial because they “bear[ ] directly on the ‘framework within which the trial proceeds.’ ” Gonzalez-Lopez, supra, at 150 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). III Notwithstanding the substantial constitutional issues at stake, the majority believes that syllogistic-type reasoning effectively resolves this case. Ante, at 12. The majority’s reasoning goes like this: First, to freeze assets prior to trial, the Government must show probable cause to believe that a defendant has committed an offense giving rise to forfeiture. Second, grand jury determinations of probable cause are nonreviewable. Therefore, the Kaleys cannot “relitigate [the] grand jury finding” of probable cause to avoid a pretrial restraint of assets they need to retain their counsel of choice. Ibid. I do not view the matter as nearly so “straightforward,” and neither did the multiple Courts of Appeals since Monsanto that have granted defendants the type of hearing the Kaleys request. See ante, at 3, n. 4. To begin with, the majority’s conclusion is wrong on its own terms. To freeze assets prior to trial, the Government must show probable cause to believe both that (1) a de- fendant has committed an offense giving rise to forfeiture and (2) the targeted assets have the requisite connection to the alleged criminal conduct. 21 U.S. C. §853(e)(1)(A). The Solicitor General concedes—and all Courts of Appeals to have considered the issue have held—that “defendants are entitled to show that the assets that are restrained are not actually the proceeds of the charged criminal offense,” Tr. of Oral Arg. 45; that is, that the second prong of the required showing is not satisfied. But by listing prop- erty in the indictment and alleging that it is subject to Cite as: 571 U. S. ____ (2014) 7 ROBERTS, C. J., dissenting forfeiture—as required to restrain assets before trial under §853(e)(1)(A)—the grand jury found probable cause to believe those assets were linked to the charged offenses, just as it found probable cause to believe the Kaleys com- mitted the underlying crimes. App. 60–61 (separate in- dictment section alleging criminal forfeiture, including of the certificate of deposit); see United States v. Jones, 160 F.3d 641, 645 (CA10 1998); United States v. Monsanto, 924 F.2d 1186, 1197 (CA2 1991) (en banc); Dept. of Jus- tice, Asset Forfeiture Policy Manual 128 (2013) (“That the indictment alleges that property is subject to forfeiture indicates that the grand jury has made a probable cause determination.”). Neither the Government nor the major- ity gives any reason why the District Court may reconsider the grand jury’s probable cause finding as to traceability— and in fact constitutionally must, if asked—but may not do so as to the underlying charged offenses.2 In any event, the hearing the Kaleys seek would not be mere relitigation of the grand jury proceedings. At that hearing, the District Court would consider the merits of the prosecution to determine whether there is probable cause to believe the Kaleys’ assets are forfeitable, not to determine whether the Kaleys may be tried at all. If the judge agrees with the Kaleys, he will merely hold that the Government has not met its burden at that hearing to justify freezing the assets the Kaleys need to pay their attorneys. The Government may proceed with the prose- —————— 2 The majority’s only response is to characterize the grand jury’s finding of traceability as merely a “technical matter.” Ante, at 11, n. 9. But the indictment draws no distinction between the grand jury’s finding of probable cause to believe that the Kaleys committed a crime and its finding of probable cause to believe that certain assets are traceable to that crime. Both showings must be made to justify a pretrial asset restraint under Monsanto, and there is nothing in that case or the indictment that justifies treating one grand jury finding differently than the other. 8 KALEY v. UNITED STATES ROBERTS, C. J., dissenting cution, but the Kaleys will have their chosen counsel at their side. Even though the probable cause standard applies at both the indictment stage and the pretrial asset restraint hearing, the judge’s determination will be based on differ- ent evidence than that previously presented to the grand jury. For its part, the Government may choose to put on more or less evidence at the hearing than it did before the grand jury. And of course the Kaleys would have the opportunity to tell their side of the story—something the grand jury never hears. See United States v. Williams, 504 U.S. 36, 51–52 (1992). Here, much of what the Kaleys want to present comes from Gruenstrass’s trial— evidence that the grand jury obviously could not have considered. So even if the judge determined that probable cause to justify the pretrial asset restraint had not been adequately established, that determination would not in any way amount to “looking into and revising the judg- ment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof.” Ante, at 7 (quoting Costello v. United States, 350 U.S. 359, 362–363 (1956) (internal quotation marks omitted)). The judge’s decision based on the evidence presented at the hearing would have no necessary legal or logical consequence for the underlying prosecution because it would be based on different evi- dence and used for a different purpose. The majority warns that allowing a judge to consider the underlying merits of the prosecution for purposes of determining whether a defendant’s assets may be re- strained pretrial could create “legal dissonance” with the grand jury’s indictment, which “could not but undermine the criminal justice system’s integrity.” Ante, at 10–11. But as explained, such a judicial finding based on different evidence with both sides present would not contradict the grand jury’s probable cause finding based on what was Cite as: 571 U. S. ____ (2014) 9 ROBERTS, C. J., dissenting before it. That finding would still suffice to accomplish its purpose—to call for a trial on the merits of the charges. Rather than creating “dissonance,” the traditional roles of the principal actors in our justice system would remain respected: The grand jury decides whether a defendant should be required to stand trial, the judge decides pre- trial matters and how the trial should proceed, and the jury decides whether the defendant is guilty of the crime. Indeed, in the bail context—the pretrial determination that is perhaps the closest analogue to the pretrial re- straint of assets at issue here—we allow judicial inquiries into the underlying merits of the indicted charges, without concern about intruding into the province of the grand jury. An indictment charging sufficiently serious crimes gives rise to a rebuttable presumption that a defend- ant is not eligible for pretrial release. See 18 U.S. C. §§3142(e)(3) and (f). Such a defendant is nonetheless entitled to an evidentiary hearing at which he may contest (among other things) “the weight of the evidence against” him, §3142(g)(2). Yet no one would say that the district court encroached on the grand jury’s role if the court de- termined that it would not authorize pretrial detention because of the weakness of the prosecution’s case. See, e.g., United States v. Hurtado, 779 F.2d 1467, 1479–1480 (CA11 1985) (recognizing that in considering the “weight of the evidence” to decide whether the presumption is rebutted, “it may well be necessary to open up the issue of probable cause since that too is a question of evidentiary weight”). That makes sense, because the district court has considered the underlying merits of the charges based on different information and for a different purpose than the grand jury did. Such a defendant would be granted pre- trial release, but would still have to show up for trial.3 —————— 3 The majority cites cases in which courts have correctly rejected re- quests for a judicial redetermination of the grand jury’s probable cause 10 KALEY v. UNITED STATES ROBERTS, C. J., dissenting In any event, few things could do more to “undermine the criminal justice system’s integrity,” ante, at 11, than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court’s decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play. IV The majority is no more persuasive in applying the due process balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976).4 As an initial matter, the majority —————— finding for purposes of determining whether the rebuttable presumption of pretrial detention is triggered. See ante, at 8–9, n. 6. But those cases do not question the judge’s authority to consider the underlying merits of the Government’s case (including what the grand jury has alleged in the indictment) for purposes of determining whether that presumption has been rebutted. E.g., United States v. Dominguez, 783 F.2d 702, 706 (CA7 1986) (“evidence probative of guilt is admitted at a detention hearing only to support or challenge the weight of the gov- ernment’s case against the defendant”); see also United States v. Jones, 583 F. Supp. 2d 513, 517 (SDNY 2008) (releasing a defendant pretrial after determining that “the weight of the evidence now overcomes the presumption of detention”). The majority notes that this inquiry in the bail context is authorized by statute, but that does not alter the crucial point: Where the prosecutor seeks to use the indictment to impose another significant pretrial consequence on a defendant, judges are allowed to inquire into the underlying merits of the prosecution (includ- ing the very same matters the grand jury has considered) as part of the inquiry into whether that consequence is justified, and that has not resulted in “dissonance” or the undermining of the grand jury’s role. 4 Under our due process precedents, it is clear that the Mathews test applies in this case, rather than the inquiry set forth in Medina v. California, 505 U.S. 437 (1992). We held in Medina that Mathews is inapplicable when “assessing the validity of state procedural rules” that “are part of the criminal process.” Id., at 443. We have therefore applied Medina rather than Mathews only when considering such due process challenges, including, for example, the allocation of burdens of proof or what type of evidence may be admitted. See, e.g., id., at 443– Cite as: 571 U. S. ____ (2014) 11 ROBERTS, C. J., dissenting gives short shrift to the Kaleys’ interests at stake. “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). Whatever serious crimes the grand jury alleges the Kaleys committed, they are presumptively innocent of those charges until final judgment. Their right to vindicate that presumption by choosing the advocate they believe will best defend them is, as explained, at the very core of the Sixth Amendment. I suspect that, for the Kaleys, that right could hardly be more precious than it is now. In addition to potentially losing the property the Government has already frozen— including their home—the Kaleys face maximum prison terms of five years (18 U.S. C. §371), ten years (§2314), and 20 years (§1956(h)) for the charges in the superseding indictment. The indictment means they must stand trial on those charges. But the Kaleys plainly have an urgent interest in having their chosen counsel—who has worked with them since the grand jury’s investigation began, two years before the indictment—mount their best possible defense at trial. The majority alludes to our cases recognizing that in- dictments may result in the temporary deprivation of a defendant’s liberty without judicial review, and suggests that indictments therefore must also be “good enough” to deprive a defendant of property without judicial review. Ante, at 9–10. Even if this greater-includes-the-lesser —————— 446 (burden of proving incompetence to stand trial); Patterson v. New York, 432 U.S. 197, 202 (1977) (burden of proving affirmative defense); Dowling v. United States, 493 U.S. 342, 352 (1990) (admissibility of testimony about a prior crime of which the defendant was acquitted). This case is not about such questions, but about the collateral issue of the pretrial deprivation of property a defendant needs to exercise his right to counsel of choice. Mathews therefore provides the relevant inquiry. 12 KALEY v. UNITED STATES ROBERTS, C. J., dissenting reasoning might be valid in other contexts, it is not when the property at issue is needed to hire chosen counsel. In the context of a prosecution for serious crimes, it is far from clear which interest is greater—the interest in tem- porary liberty pending trial, or the interest in using one’s available means to avoid imprisonment for many years after trial. Retaining one’s counsel of choice ensures the fundamental fairness of the actual trial, and thus may be far more valuable to a criminal defendant than pretrial release. As for the Government’s side, the Court echoes the Government’s concerns that a hearing would place de- mands on its resources and interfere with its desire to keep its trial strategy close to the vest. These concerns are somewhat curious in light of the majority’s emphasis on how easy it is to make a probable cause showing. And they are even more surprising in light of the extensive discovery obligations already imposed on the Government by Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963). The emphasis the Gov- ernment places on pretrial secrecy evokes an outdated conception of the criminal trial as “a poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, 399 U.S. 78, 82 (1970). Moreover, recall that the Government concedes that due process guarantees defendants a hearing to contest the traceability of the restrained assets to the charged con- duct. If a defendant requests such a hearing, the Gov- ernment will likely be required to reveal something about its case to demonstrate that the assets have the requisite connection to the charged offenses. In any event, these concerns are exaggerated. What the Government would be required to show in a pretrial re- straint hearing is similar to pretrial showings prosecutors make in other contexts on a daily basis. As mentioned Cite as: 571 U. S. ____ (2014) 13 ROBERTS, C. J., dissenting above, when the Government seeks an order detaining a defendant pending trial, it routinely makes an extensive evidentiary showing—voluntarily disclosing much of its evidence and trial strategy—in support of that relief. See Brief for California Attorneys for Criminal Justice as Amicus Curiae 11–18. The Government makes similar showings in the context of other pretrial motions, such as motions to admit hearsay evidence under the co- conspirator exception, or to discover attorney-client com- munications made in furtherance of a future crime. Id., at 19–28. In those contexts, as in this one, the decision how much to “show its hand” rests fully within the Government’s discretion. If it has a strong case and believes that pretrial restraint is necessary to preserve the assets for forfeit- ure, the Government may choose to make a strong evi- dentiary showing and have little concern about doing so. In a closer case, where the Government is more concerned about tipping its hand, it may elect to forgo a pretrial restraint of those assets the defendant needs to pay his counsel. I see no great burden on the Government in allowing it to strike this balance as it sees fit when consid- ering a pretrial asset restraint that would deprive a de- fendant of his right to counsel of choice. In the end, it is a bit much to argue that the Government has discretion to deprive a defendant—without a hearing—of the counsel he has chosen to present his defense, simply to avoid the mere possibility of a premature peek at some aspect of what the Government intends to do at trial. The majority also significantly underestimates the amount of control judges can exercise in these types of hearings. The Circuits that allow such hearings have afforded judges a great deal of flexibility in structuring them. Judges need not apply the Federal Rules of Evi- dence during the hearings, and they can take many steps, including in camera proceedings, to ensure that witness 14 KALEY v. UNITED STATES ROBERTS, C. J., dissenting safety and grand jury secrecy are fully preserved. See Monsanto, 924 F.2d, at 1198; United States v. E-Gold, Ltd., 521 F.3d 411, 418–419 (CADC 2008). Moreover, experience in the Second Circuit, where defendants have for more than 20 years been afforded the type of hearing the Kaleys seek, indicates that such hear- ings do not occur so often as to raise substantial concerns about taxing the resources of the Government and lower courts. See Brief for New York Council of Defense Law- yers as Amicus Curiae 4–9. As the majority notes, only 25 reported cases appear to have addressed such hearings. Id., at 4. This relative rarity is unsurprising. To even be entitled to the hearing, defendants must first show a genuine need to use the assets to retain counsel of choice. See United States v. Bonventre, 720 F.3d 126, 131 (CA2 2013). And defendants too have an incentive not to tip their hands as to trial strategy—perhaps to an even greater extent than the Government, given that defendants bear comparatively few discovery obligations at a criminal trial. In light of the low bar of the probable cause stand- ard, many defendants likely conclude that the possible benefits of the hearing are not worth the candle. For those hearings that do occur, they are by all appear- ances ably controlled by district judges to keep them man- ageable and to limit the potential for excess or abuse. See Brief for New York Council of Defense Lawyers as Amicus Curiae 6–8. In addition, where such hearings are allowed, prosecutors and defense counsel often reach agreements concerning the scope and conditions of any protective order that accommodate the interests of both sides. See id., at 8–9. When the right at stake is as fundamental as hiring one’s counsel of choice—the “root meaning” of the Sixth Amendment, Gonzalez-Lopez, 548 U.S., at 147– 148—the Government’s interest in saving the time and expense of a limited number of such proceedings is not particularly compelling. Cite as: 571 U. S. ____ (2014) 15 ROBERTS, C. J., dissenting The Government does have legitimate interests that are served by forfeiture of allegedly tainted assets. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629 (1989). And imposing a pretrial restraint on such assets does increase the likelihood that they will be available if the defendant is convicted.5 But that interest is protected in other ways that mitigate the concern that defendants will successfully divert forfeitable assets from the Gov- ernment’s reach if afforded a hearing. The relation-back provision in 21 U.S. C. §853(c) provides that title to for- feitable assets, once adjudged forfeitable, vests in the Government as of the time the offense was committed. Section 853(c) then provides that the Government may seek a “special verdict of forfeiture” as to any forfeited property that was subsequently transferred to a third party. The Government protests that recovery of such assets will often be complicated and subject to the vagar- ies of state law. Tr. of Oral Arg. 49–50. But such com- plaints of administrative inconvenience carry little weight in this particular context, when the Government knows exactly where the money has gone: to an attorney who is, after all, an officer of the court, and on notice that the Government claims title to the assets. And we are not talking about all of a defendant’s assets that are subject to forfeiture—only those that the defend- ant can show are necessary to secure his counsel of choice. —————— 5 The Government and the majority place particular emphasis on the use of forfeited assets to provide restitution to victims of crime. See Brief for United States 41–42, and n. 14; ante, at 2, n. 1. It is worth noting in this respect that in prosecuting the other sales representa- tives that participated with the Kaleys in the allegedly fraudulent conduct, the Government’s position as to who exactly is the “victim” has shifted frequently. See Brief for Petitioners 9–11 (hospitals); id., at 18, 21–23 (their employers); Tr. of Oral Arg. 43–44 (hospitals). As one prosecutor forthrightly acknowledged at the sentencing hearing of an alleged co-conspirator, “we can’t make restitution.” Brief for Petition- ers 11. 16 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Here, for example, the Kaleys have identified as needed to pay counsel only a discrete portion of the assets the Gov- ernment seeks. The statistics cited by the Court on the total amount of assets recovered by the Government and provided as restitution for victims, ante, at 2, n. 1, are completely beside the point. The majority ultimately concludes that a pretrial hear- ing of the sort the Kaleys seek would be a waste of time. Ante, at 17–20. No. It takes little imagination to see that seizures based entirely on ex parte proceedings create a heightened risk of error. Common sense tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hear- ing from both sides. We have thus consistently recognized that the “fundamental instrument for judicial judgment” is “an adversary proceeding in which both parties may par- ticipate.” Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183 (1968). In the present context, some defendants (like the Kaleys) may be able to show that the theory of prosecution is legally defective through an argument that almost certainly was not presented to the grand jury. And as discussed above, supra, at 13–15, prosecutors in some cases elect not to freeze needed assets, or they negotiate tailored protective orders to serve the interests of both sides—something they would be unlikely to do if the hearings were rote exercises. Given the risk of an erroneous restraint of assets needed to retain chosen counsel, the “probable value” of the “addi- tional safeguard” a pretrial hearing would provide is significant. That is because the right to counsel of choice is inherently transient, and the deprivation of that right effectively permanent. In our cases suggesting that little would be gained by requiring an adversary hearing on probable cause or imposing stricter evidentiary require- ments in grand jury proceedings, we have noted that the grand jury is not where the ultimate question of “the guilt Cite as: 571 U. S. ____ (2014) 17 ROBERTS, C. J., dissenting or innocence of the accused is adjudicated.” United States v. Calandra, 414 U.S. 338, 343 (1974); see United States v. Williams, 504 U.S. 36, 51 (1992) (explaining that the grand jury hears only from the prosecutor because “ ‘the finding of an indictment is only in the nature of an en- quiry or accusation, which is afterwards to be tried and determined’ ” (quoting 4 W. Blackstone, Commentaries 300 (1769)). If the grand jury considers incomplete or incom- petent evidence in deciding to return an indictment, the defendant still has the full trial on the merits, with all its “formalities and safeguards,” Gerstein v. Pugh, 420 U.S. 103, 122 (1975), to prove his innocence. Here, by contrast, the Government seeks to use the grand jury’s probable cause determination to strip the Kaleys of their counsel of choice. The Kaleys can take no comfort that they will be able to vindicate that right in a future adversarial proceeding. Once trial begins with someone other than chosen counsel, the right is lost, and it cannot be restored based on what happens at trial. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews, 424 U.S., at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). If the Kaleys are to have any opportunity to meaningfully challenge that deprivation, they must have it before the trial begins. * * * The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. 18 KALEY v. UNITED STATES ROBERTS, C. J., dissenting The trial is governed by rules designed to ensure that, whatever the ultimate verdict, we can be confident to the extent possible that justice was done, within the bounds of the Constitution. That confidence is grounded in our belief in the adversary system. “The very premise of our adversary system of criminal justice is that partisan advo- cacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U.S. 853, 862 (1975). Today’s decision erodes that confidence by permitting the Government to deprive a criminal defendant of his right to counsel of choice, without so much as a chance to be heard on why such a significant pretrial deprivation is unwarranted. The majority wraps up its analysis by blandly noting that Congress is of course free to extend broader protec- tion to criminal defendants. Ante, at 20. Not very likely. In this area it is to the courts that those charged with crime must turn. Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself. We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense—the attorney he selects and trusts—by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an oppor- tunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent. I The facts of this case are important. They highlight the significance to a defendant of being able to hire his counsel of choice, and the potential for unfairness inherent in giving the prosecutor the discretion to take that right away. Kerri Kaley worked as a sales representative for a Johnson & Johnson subsidiary, selling prescription medi- cal devices. Kaley and other sales representatives occa- sionally obtained outmoded or surplus devices from staff 2 KALEY v. UNITED STATES ROBERTS, C. J., dissenting members at the medical facilities they served, when, for example, those devices were no longer needed because they had been superseded by newer models. Kaley sold the unwanted devices to a Florida company, dividing the proceeds among the sales representatives. Kaley learned in January 2005 that a federal grand jury was investigating those activities as a conspiracy to sell stolen prescription medical devices. Kaley and her hus- band (who allegedly helped ship the products to Florida) retained counsel, who immediately set to work preparing their defense against any impending charges. Counsel regularly discussed the investigation with the Kaleys, helped review documents demanded by the grand jury, and met with prosecutors in an attempt to ward off an indictment. Nonetheless preparing for the worst, the Kaleys applied for a $500,000 equity line of credit on their home to pay estimated legal fees associated with a trial. They used that money to purchase a $500,000 certificate of deposit, which they set aside until it would be needed to pay their attorneys for the trial. In February 2007, the grand jury returned a seven- count indictment charging the Kaleys and another sales representative, Jennifer Gruenstrass, with violations of federal law. The indictment alleged that a “money judg- ment” of over $2 million and the $500,000 certificate of deposit were subject to forfeiture under 18 U.S. C. because those assets constituted “proceeds” of the alleged crimes. Armed with this indictment, the prosecution obtained an ex parte order pursuant to 21 U.S. C. thereby freezing all of the Kaleys’ assets listed in the indictment, including the certificate of deposit set aside for legal fees. The Government did not seek to freeze any of Gruenstrass’s assets. The Kaleys moved to vacate the order, requesting a hearing at which they could argue that there was no prob- able cause to believe their assets were forfeitable, because Cite as: 571 U. S. (2014) 3 ROBERTS, C. J., dissenting their alleged conduct was not criminal. They argued they were entitled to such a hearing because the restraining order targeted funds they needed and had set aside to retain for trial the same counsel who had been preparing their defense for two years. And they contended that the prosecution was baseless because the Government could not identify anyone who claimed ownership of the medical devices alleged to have been “stolen.” During a telephone conference with a Magistrate Judge on the motion, the prosecution conceded that it had been able to trace only $140,000 in allegedly criminal proceeds to the Kaleys, which led the Magistrate Judge to question the lawfulness of restraining the listed assets. Just two business days after that conference, the Gov- ernment obtained a superseding indictment that added a count of conspiracy to commit money laundering under 18 U.S. C. Adding that charge enabled the Gov- ernment to proceed under a much broader forfeiture provi- sion than the one in the original indictment. While the civil forfeiture provision in authorized forfeit- ure of property that “constitutes or is derived from pro- ceeds traceable to” a qualifying criminal violation, the criminal forfeiture provision now invoked by the Govern- forfeiture of property “in- volved in” a qualifying offense, or “any property traceable to such property.” The superseding indictment alleged that a sum of more than $2 million, the certificate of de- posit reserved to pay legal expenses, and now the Kaleys’ home were subject to forfeiture. And again, the Govern- ment sought an order freezing substantially all those assets. The Kaleys objected, repeating the arguments they had previously raised, and also contending that the prosecu- tors were being vindictive in adding the money laundering charge and seeking broader forfeiture. The District Court nonetheless entered the broader order requested by the 4 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Government, and the restraint on the Kaleys’ assets re- mains in place. While the Kaleys’ appeal from that denial was pending, the Government proceeded to trial separately against their codefendant Gruenstrass. As the Government had not sought to freeze Gruenstrass’s assets, she was repre- sented by her chosen counsel. Her counsel argued that the Government was pitching a fraud without a victim, be- cause no Government witness took the stand to claim ownership of the allegedly stolen devices. The jury acquit- ted Gruenstrass on all charges in less than three hours—a good omen for the Kaleys and their counsel as they pre- pared for their own trial. II The issues at stake here implicate fundamental consti- tutional principles. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his de- fence.” In many ways, this is the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys. United States v. Cronic, And more than 80 years ago, we found it “hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Indeed, we recently called the “right to select counsel of one’s choice the root meaning of the constitutional guarantee” of the Sixth Amendment. United States v. The Amendment requires “that a particular guarantee of fair- ness be provided—to wit, that the accused be defended by the counsel he believes to be best.” An individual’s right to counsel of choice is violated “whenever the defendant’s choice is wrongfully denied,” and such Cite as: 571 U. S. (2014) 5 ROBERTS, C. J., dissenting error “pervades the entire trial.” A violation of this right is therefore a “structural error,” ibid.; that is, one of the very few kinds of errors that “undermine the fairness of a criminal proceeding as a whole.” United States v. Davila, 569 U. S. (2013) (slip op., at 12). It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest. 486 U.S. 1, 159 (1988). And a district court need not always shuffle its calendar to accommodate a defendant’s preferred coun- sel if it has legitimate reasons not to do so. Morris v. Slappy, But none of those limitations is imposed at the unreviewable discretion of a prosecutor—the party who wants the defendant to lose at trial. This Court has held that the prosecution may freeze assets a defendant needs to retain his counsel of choice upon “a finding of probable cause to believe that the assets are forfeitable.” United 615 (1989). The Kaleys do not challenge that holding here. But the Court in acknowledged and re- served the crucial question whether a defendant had the right to be heard before the Government could take such action.1 There was good reason for that caution. The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire pro- ceeding. “A fair trial in a fair tribunal is a basic require- —————— 1 Because the District Court in had imposed the restraining order after an “extensive, 4-day hearing on the question of probable cause,” it was “pointless” for this Court to decide whether a hearing was required to “adequately establish[ ]” probable n. 10, 616. 6 KALEY v. UNITED STATES ROBERTS, C. J., dissenting ment of due process.” In re Murchison, (1955). Issues concerning the denial of counsel of choice implicate the overall fairness of the trial because they “bear[ ] directly on the ‘framework within which the trial proceeds.’ ” ). III Notwithstanding the substantial constitutional issues at stake, the majority believes that syllogistic-type reasoning effectively resolves this case. Ante, at 12. The majority’s reasoning goes like this: First, to freeze assets prior to trial, the Government must show probable cause to believe that a defendant has committed an offense giving rise to forfeiture. Second, grand jury determinations of probable cause are nonreviewable. Therefore, the Kaleys cannot “relitigate [the] grand jury finding” of probable cause to avoid a pretrial restraint of assets they need to retain their counsel of choice. I do not view the matter as nearly so “straightforward,” and neither did the multiple Courts of Appeals since that have granted defendants the type of hearing the Kaleys request. See ante, at 3, n. 4. To begin with, the majority’s conclusion is wrong on its own terms. To freeze assets prior to trial, the Government must show probable cause to believe both that (1) a de- fendant has committed an offense giving rise to forfeiture and (2) the targeted assets have the requisite connection to the alleged criminal conduct. 21 U.S. C. §8(e)(1)(A). The Solicitor General concedes—and all Courts of Appeals to have considered the issue have held—that “defendants are entitled to show that the assets that are restrained are not actually the proceeds of the charged criminal offense,” Tr. of Oral Arg. 45; that is, that the second prong of the required showing is not satisfied. But by listing prop- erty in the indictment and alleging that it is subject to Cite as: 571 U. S. (2014) 7 ROBERTS, C. J., dissenting forfeiture—as required to restrain assets before trial under §8(e)(1)(A)—the grand jury found probable cause to believe those assets were linked to the charged offenses, just as it found probable cause to believe the Kaleys com- mitted the underlying crimes. App. 60–61 (separate in- dictment section alleging criminal forfeiture, including of the certificate of deposit); see United States v. Jones, 160 F.3d 641, 645 (CA10 1998); United ; Dept. of Jus- tice, Asset Forfeiture Policy Manual 128 (2013) (“That the indictment alleges that property is subject to forfeiture indicates that the grand jury has made a probable cause determination.”). Neither the Government nor the major- ity gives any reason why the District Court may reconsider the grand jury’s probable cause finding as to traceability— and in fact constitutionally must, if asked—but may not do so as to the underlying charged offenses.2 In any event, the hearing the Kaleys seek would not be mere relitigation of the grand jury proceedings. At that hearing, the District Court would consider the merits of the prosecution to determine whether there is probable cause to believe the Kaleys’ assets are forfeitable, not to determine whether the Kaleys may be tried at all. If the judge agrees with the Kaleys, he will merely hold that the Government has not met its burden at that hearing to justify freezing the assets the Kaleys need to pay their attorneys. The Government may proceed with the prose- —————— 2 The majority’s only response is to characterize the grand jury’s finding of traceability as merely a “technical matter.” Ante, at 11, n. 9. But the indictment draws no distinction between the grand jury’s finding of probable cause to believe that the Kaleys committed a crime and its finding of probable cause to believe that certain assets are traceable to that crime. Both showings must be made to justify a pretrial asset restraint under and there is nothing in that case or the indictment that justifies treating one grand jury finding differently than the other. 8 KALEY v. UNITED STATES ROBERTS, C. J., dissenting cution, but the Kaleys will have their chosen counsel at their side. Even though the probable cause standard applies at both the indictment stage and the pretrial asset restraint hearing, the judge’s determination will be based on differ- ent evidence than that previously presented to the grand jury. For its part, the Government may choose to put on more or less evidence at the hearing than it did before the grand jury. And of course the Kaleys would have the opportunity to tell their side of the story—something the grand jury never hears. See United Here, much of what the Kaleys want to present comes from Gruenstrass’s trial— evidence that the grand jury obviously could not have considered. So even if the judge determined that probable cause to justify the pretrial asset restraint had not been adequately established, that determination would not in any way amount to “looking into and revising the judg- ment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof.” Ante, at 7 (internal quotation marks omitted)). The judge’s decision based on the evidence presented at the hearing would have no necessary legal or logical consequence for the underlying prosecution because it would be based on different evi- dence and used for a different purpose. The majority warns that allowing a judge to consider the underlying merits of the prosecution for purposes of determining whether a defendant’s assets may be re- strained pretrial could create “legal dissonance” with the grand jury’s indictment, which “could not but undermine the criminal justice system’s integrity.” Ante, at 10–11. But as explained, such a judicial finding based on different evidence with both sides present would not contradict the grand jury’s probable cause finding based on what was Cite as: 571 U. S. (2014) 9 ROBERTS, C. J., dissenting before it. That finding would still suffice to accomplish its purpose—to call for a trial on the merits of the charges. Rather than creating “dissonance,” the traditional roles of the principal actors in our justice system would remain respected: The grand jury decides whether a defendant should be required to stand trial, the judge decides pre- trial matters and how the trial should proceed, and the jury decides whether the defendant is guilty of the crime. Indeed, in the bail context—the pretrial determination that is perhaps the closest analogue to the pretrial re- straint of assets at issue here—we allow judicial inquiries into the underlying merits of the indicted charges, without concern about intruding into the province of the grand jury. An indictment charging sufficiently serious crimes gives rise to a rebuttable presumption that a defend- ant is not eligible for pretrial release. See 18 U.S. C. and (f). Such a defendant is nonetheless entitled to an evidentiary hearing at which he may contest (among other things) “the weight of the evidence against” him, Yet no one would say that the district court encroached on the grand jury’s role if the court de- termined that it would not authorize pretrial detention because of the weakness of the prosecution’s case. See, e.g., United 1479–1480 (CA11 1985) (recognizing that in considering the “weight of the evidence” to decide whether the presumption is rebutted, “it may well be necessary to open up the issue of probable cause since that too is a question of evidentiary weight”). That makes sense, because the district court has considered the underlying merits of the charges based on different information and for a different purpose than the grand jury did. Such a defendant would be granted pre- trial release, but would still have to show up for trial.3 —————— 3 The majority cites cases in which courts have correctly rejected re- quests for a judicial redetermination of the grand jury’s probable cause 10 KALEY v. UNITED STATES ROBERTS, C. J., dissenting In any event, few things could do more to “undermine the criminal justice system’s integrity,” ante, at 11, than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court’s decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play. IV The majority is no more persuasive in applying the due process balancing test set forth in4 As an initial matter, the majority —————— finding for purposes of determining whether the rebuttable presumption of pretrial detention is triggered. See ante, at 8–9, n. 6. But those cases do not question the judge’s authority to consider the underlying merits of the Government’s case (including what the grand jury has alleged in the indictment) for purposes of determining whether that presumption has been rebutted. E.g., United States v. Dominguez, 783 F.2d 702, 706 (CA7 1986) (“evidence probative of guilt is admitted at a detention hearing only to support or challenge the weight of the gov- ernment’s case against the defendant”); see also United (releasing a defendant pretrial after determining that “the weight of the evidence now overcomes the presumption of detention”). The majority notes that this inquiry in the bail context is authorized by statute, but that does not alter the crucial point: Where the prosecutor seeks to use the indictment to impose another significant pretrial consequence on a defendant, judges are allowed to inquire into the underlying merits of the prosecution (includ- ing the very same matters the grand jury has considered) as part of the inquiry into whether that consequence is justified, and that has not resulted in “dissonance” or the undermining of the grand jury’s role. 4 Under our due process precedents, it is clear that the test applies in this case, rather than the inquiry set forth in Medina v. California, We held in Medina that is inapplicable when “assessing the validity of state procedural rules” that “are part of the criminal process.” We have therefore applied Medina rather than only when considering such due process challenges, including, for example, the allocation of burdens of proof or what type of evidence may be admitted. See, e.g., – Cite as: 571 U. S. (2014) 11 ROBERTS, C. J., dissenting gives short shrift to the Kaleys’ interests at stake. “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 Whatever serious crimes the grand jury alleges the Kaleys committed, they are presumptively innocent of those charges until final judgment. Their right to vindicate that presumption by choosing the advocate they believe will best defend them is, as explained, at the very core of the Sixth Amendment. I suspect that, for the Kaleys, that right could hardly be more precious than it is now. In addition to potentially losing the property the Government has already frozen— including their home—the Kaleys face maximum prison terms of five years (18 U.S. C. ten years and 20 years for the charges in the superseding indictment. The indictment means they must stand trial on those charges. But the Kaleys plainly have an urgent interest in having their chosen counsel—who has worked with them since the grand jury’s investigation began, two years before the indictment—mount their best possible defense at trial. The majority alludes to our cases recognizing that in- dictments may result in the temporary deprivation of a defendant’s liberty without judicial review, and suggests that indictments therefore must also be “good enough” to deprive a defendant of property without judicial review. Ante, at 9–10. Even if this greater-includes-the-lesser —————— 446 (burden of proving incompetence to stand trial); ; (admissibility of testimony about a prior crime of which the defendant was acquitted). This case is not about such questions, but about the collateral issue of the pretrial deprivation of property a defendant needs to exercise his right to counsel of choice. therefore provides the relevant inquiry. 12 KALEY v. UNITED STATES ROBERTS, C. J., dissenting reasoning might be valid in other contexts, it is not when the property at issue is needed to hire chosen counsel. In the context of a prosecution for serious crimes, it is far from clear which interest is greater—the interest in tem- porary liberty pending trial, or the interest in using one’s available means to avoid imprisonment for many years after trial. Retaining one’s counsel of choice ensures the fundamental fairness of the actual trial, and thus may be far more valuable to a criminal defendant than pretrial release. As for the Government’s side, the Court echoes the Government’s concerns that a hearing would place de- mands on its resources and interfere with its desire to keep its trial strategy close to the vest. These concerns are somewhat curious in light of the majority’s emphasis on how easy it is to make a probable cause showing. And they are even more surprising in light of the extensive discovery obligations already imposed on the Government by Federal Rule of Criminal Procedure 16 and Brady v. Maryland, The emphasis the Gov- ernment places on pretrial secrecy evokes an outdated conception of the criminal trial as “a poker game in which players enjoy an absolute right always to conceal their cards until played.” (1970). Moreover, recall that the Government concedes that due process guarantees defendants a hearing to contest the traceability of the restrained assets to the charged con- duct. If a defendant requests such a hearing, the Gov- ernment will likely be required to reveal something about its case to demonstrate that the assets have the requisite connection to the charged offenses. In any event, these concerns are exaggerated. What the Government would be required to show in a pretrial re- straint hearing is similar to pretrial showings prosecutors make in other contexts on a daily basis. As mentioned Cite as: 571 U. S. (2014) 13 ROBERTS, C. J., dissenting when the Government seeks an order detaining a defendant pending trial, it routinely makes an extensive evidentiary showing—voluntarily disclosing much of its evidence and trial strategy—in support of that relief. See Brief for California Attorneys for Criminal Justice as Amicus Curiae 11–18. The Government makes similar showings in the context of other pretrial motions, such as motions to admit hearsay evidence under the co- conspirator exception, or to discover attorney-client com- munications made in furtherance of a future crime. at 19–28. In those contexts, as in this one, the decision how much to “show its hand” rests fully within the Government’s discretion. If it has a strong case and believes that pretrial restraint is necessary to preserve the assets for forfeit- ure, the Government may choose to make a strong evi- dentiary showing and have little concern about doing so. In a closer case, where the Government is more concerned about tipping its hand, it may elect to forgo a pretrial restraint of those assets the defendant needs to pay his counsel. I see no great burden on the Government in allowing it to strike this balance as it sees fit when consid- ering a pretrial asset restraint that would deprive a de- fendant of his right to counsel of choice. In the end, it is a bit much to argue that the Government has discretion to deprive a defendant—without a hearing—of the counsel he has chosen to present his defense, simply to avoid the mere possibility of a premature peek at some aspect of what the Government intends to do at trial. The majority also significantly underestimates the amount of control judges can exercise in these types of hearings. The Circuits that allow such hearings have afforded judges a great deal of flexibility in structuring them. Judges need not apply the Federal Rules of Evi- dence during the hearings, and they can take many steps, including in camera proceedings, to ensure that witness 14 KALEY v. UNITED STATES ROBERTS, C. J., dissenting safety and grand jury secrecy are fully preserved. See ; United Moreover, experience in the Second Circuit, where defendants have for more than 20 years been afforded the type of hearing the Kaleys seek, indicates that such hear- ings do not occur so often as to raise substantial concerns about taxing the resources of the Government and lower courts. See Brief for New York Council of Defense Law- yers as Amicus Curiae 4–9. As the majority notes, only 25 reported cases appear to have addressed such hearings. This relative rarity is unsurprising. To even be entitled to the hearing, defendants must first show a genuine need to use the assets to retain counsel of choice. See United (CA2 2013). And defendants too have an incentive not to tip their hands as to trial strategy—perhaps to an even greater extent than the Government, given that defendants bear comparatively few discovery obligations at a criminal trial. In light of the low bar of the probable cause stand- ard, many defendants likely conclude that the possible benefits of the hearing are not worth the candle. For those hearings that do occur, they are by all appear- ances ably controlled by district judges to keep them man- ageable and to limit the potential for excess or abuse. See Brief for New York Council of Defense Lawyers as Amicus Curiae 6–8. In addition, where such hearings are allowed, prosecutors and defense counsel often reach agreements concerning the scope and conditions of any protective order that accommodate the interests of both sides. See at 8–9. When the right at stake is as fundamental as hiring one’s counsel of choice—the “root meaning” of the Sixth Amendment, – 148—the Government’s interest in saving the time and expense of a limited number of such proceedings is not particularly compelling. Cite as: 571 U. S. (2014) 15 ROBERTS, C. J., dissenting The Government does have legitimate interests that are served by forfeiture of allegedly tainted assets. Caplin & Drysdale, (1989). And imposing a pretrial restraint on such assets does increase the likelihood that they will be available if the defendant is convicted.5 But that interest is protected in other ways that mitigate the concern that defendants will successfully divert forfeitable assets from the Gov- ernment’s reach if afforded a hearing. The relation-back provision in 21 U.S. C. §8(c) provides that title to for- feitable assets, once adjudged forfeitable, vests in the Government as of the time the offense was committed. Section 8(c) then provides that the Government may seek a “special verdict of forfeiture” as to any forfeited property that was subsequently transferred to a third party. The Government protests that recovery of such assets will often be complicated and subject to the vagar- ies of state law. Tr. of Oral Arg. 49–50. But such com- plaints of administrative inconvenience carry little weight in this particular context, when the Government knows exactly where the money has gone: to an attorney who is, after all, an officer of the court, and on notice that the Government claims title to the assets. And we are not talking about all of a defendant’s assets that are subject to forfeiture—only those that the defend- ant can show are necessary to secure his counsel of choice. —————— 5 The Government and the majority place particular emphasis on the use of forfeited assets to provide restitution to victims of crime. See Brief for United States 41–42, and n. 14; ante, at 2, n. 1. It is worth noting in this respect that in prosecuting the other sales representa- tives that participated with the Kaleys in the allegedly fraudulent conduct, the Government’s position as to who exactly is the “victim” has shifted frequently. See Brief for Petitioners 9–11 (hospitals); 21–23 (their employers); Tr. of Oral Arg. 43–44 (hospitals). As one prosecutor forthrightly acknowledged at the sentencing hearing of an alleged co-conspirator, “we can’t make restitution.” Brief for Petition- ers 11. 16 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Here, for example, the Kaleys have identified as needed to pay counsel only a discrete portion of the assets the Gov- ernment seeks. The statistics cited by the Court on the total amount of assets recovered by the Government and provided as restitution for victims, ante, at 2, n. 1, are completely beside the point. The majority ultimately concludes that a pretrial hear- ing of the sort the Kaleys seek would be a waste of time. Ante, at 17–20. No. It takes little imagination to see that seizures based entirely on ex parte proceedings create a heightened risk of error. Common sense tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hear- ing from both sides. We have thus consistently recognized that the “fundamental instrument for judicial judgment” is “an adversary proceeding in which both parties may par- ticipate.” In the present context, some defendants (like the Kaleys) may be able to show that the theory of prosecution is legally defective through an argument that almost certainly was not presented to the grand jury. And as discussed at 13–15, prosecutors in some cases elect not to freeze needed assets, or they negotiate tailored protective orders to serve the interests of both sides—something they would be unlikely to do if the hearings were rote exercises. Given the risk of an erroneous restraint of assets needed to retain chosen counsel, the “probable value” of the “addi- tional safeguard” a pretrial hearing would provide is significant. That is because the right to counsel of choice is inherently transient, and the deprivation of that right effectively permanent. In our cases suggesting that little would be gained by requiring an adversary hearing on probable cause or imposing stricter evidentiary require- ments in grand jury proceedings, we have noted that the grand jury is not where the ultimate question of “the guilt Cite as: 571 U. S. (2014) 17 ROBERTS, C. J., dissenting or innocence of the accused is adjudicated.” United States v. Calandra, ; see United States v. Williams, (explaining that the grand jury hears only from the prosecutor because “ ‘the finding of an indictment is only in the nature of an en- quiry or accusation, which is afterwards to be tried and determined’ ” (quoting 4 W. Blackstone, Commentaries 300 (1769)). If the grand jury considers incomplete or incom- petent evidence in deciding to return an indictment, the defendant still has the full trial on the merits, with all its “formalities and safeguards,” Gerstein v. Pugh, 420 U.S. 103, 122 to prove his innocence. Here, by contrast, the Government seeks to use the grand jury’s probable cause determination to strip the Kaleys of their counsel of choice. The Kaleys can take no comfort that they will be able to vindicate that right in a future adversarial proceeding. Once trial begins with someone other than chosen counsel, the right is lost, and it cannot be restored based on what happens at trial. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” ). If the Kaleys are to have any opportunity to meaningfully challenge that deprivation, they must have it before the trial begins. * * * The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. 18 KALEY v. UNITED STATES ROBERTS, C. J., dissenting The trial is governed by rules designed to ensure that, whatever the ultimate verdict, we can be confident to the extent possible that justice was done, within the bounds of the Constitution. That confidence is grounded in our belief in the adversary system. “The very premise of our adversary system of criminal justice is that partisan advo- cacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” 422 U.S. 8, Today’s decision erodes that confidence by permitting the Government to deprive a criminal defendant of his right to counsel of choice, without so much as a chance to be heard on why such a significant pretrial deprivation is unwarranted. The majority wraps up its analysis by blandly noting that Congress is of course free to extend broader protec- tion to criminal defendants. Ante, at 20. Not very likely. In this area it is to the courts that those charged with crime must turn. Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent

Justice Blackmun

majority

United States v. Chicago, B. & QR Co.

https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/

https://www.courtlistener.com/api/rest/v3/clusters/108806/

1972-133

The issue in this federal income tax case is whether the respondent, Chicago, Burlington & Quincy Railroad Company (CB&Q), an interstate common carrier railroad, may depreciate the cost of certain facilities paid for prior to June 22, 1954, not by it or by its shareholders, but from public funds. Starting about 1930, CB&Q entered into a series of contracts with various Midwestern States. By these agreements the States were to fund some or all of the costs of construction of specified improvements, and the railroad apparently was to bear, at least in part, the costs of maintenance and replacement of the improvements once they had been installed. In 1933, as part of the program of the National Industrial Recovery Act, 48 Stat. 195, Congress authorized federal reimbursement to the States of the shares of the costs the States incurred in the construction of those improvements that inured to the benefit of public safety and improved highway traffic control.[1] In 1944 Congress went further and authorized reimbursement, with stated limitations, to the States for the entire cost of the improvements, subject to the condition *403 that a railroad that received a benefit from a facility so constructed was liable to the Government for up to 10% of the cost of the project pro rata in relation to the benefit received by the railroad.[2] Under these programs CB&Q received, at public expense, highway undercrossings and overcrossings having a cost of $1,538,543; crossing signals, signs, and floodlights having a cost of $548,877; and jetties and bridges having a cost of $58,721.[3] These improvements, aggregating $2,146,141, were carried on the railroad's books as capital assets even though most of the agreements between CB&Q and the several States did not expressly convey title to the railroad. CB&Q instituted a timely suit in the Court of Claims alleging, among other things, that it had overpaid its 1955 federal income tax because it had failed to assert, as a deduction on its return as filed, allowable depreciation on the subsidized assets.[4] By a 4-to-3 decision on this issue (only one of several in the case), the Court of Claims concluded that, under § 167 of the Internal Revenue Code of 1954, 26 U.S. C. § 167, CB&Q was entitled to the depreciation deduction it claimed. This was on the theory that the subsidies qualified as contributions to the railroad's capital under §§ 362 and 1052 (c) of that *404 Code, 26 U.S. C. §§ 362 and 1052 (c), and under § 113 (a) (8) of the Internal Revenue Code of 1939. In arriving at this conclusion, the Court of Claims majority relied on Brown Shoe Co. v. Commissioner, 339 U.S. 583 (1950), and reasoned that, even though the governmental payments for the facilities may not have been intended as contributions to the railroad's capital, the "principal purpose" being, instead, "to benefit the community-at-large," 197 Ct. Cl., at 276, 455 F. 2d, at 1000, the facilities did in fact enlarge the railroad's working capital, were used in its business, and produced economic benefits for it, thereby qualifying as contributions to its capital under the cited section of the 1939 Code. The three dissenting judges disagreed with this interpretation of Brown Shoe, and, instead, relied on Detroit Edison Co. v. Commissioner, 319 U.S. 98 (1943). They concluded that the critical features were the donor's attitude, purpose, and intent, and that, with governmental payments, there could be no intention to confer a benefit upon CB&Q. Instead, as the findings revealed,[5] the intention was to expedite traffic flow and to improve public safety at highway-railroad crossings. 197 Ct. Cl., at 315, 320, 455 F.2d, at 1023, 1026. Because the Court of Claims decision apparently would afford a precedent for the tax treatment of substantial sums,[6] we granted certiorari. 409 U.S. 947. *405 I Section 23 (l) of the 1939 Code and its successor, § 167 (a) of the 1954 Code, 26 U.S. C. § 167 (a), allow a taxpayer "as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear . . . of property used in the trade or business." In the usual situation the taxpayer himself incurs cost in acquiring the assets as to which the depreciation deduction is asserted.[7] But there are other and different situations formally recognized in the governing tax statutes. A familiar example is gift property.[8] Another is property acquired by a corporation *406 from its shareholders as paid-in surplus or as a contribution to capital.[9] Another, and the one that is pertinent here, is covered by § 113 (a) (8)[10] of the 1939 Code and by the contrasting provisions of §§ 362 (a) and (c) of the 1954 Code, 26 U.S. C. §§ 362 (a) and (c).[11]*407 This concerns a contribution to capital by a nonshareholder. See Treas. Reg. 111, § 29.113 (a) (8)-1 (1943). Under §§ 113 (a) (8) and 114 (a) of the earlier Code, the nonshareholder-contributed asset in the hands of the receiving corporation had the same basis, subject to adjustment, for depreciation purposes as it had in the hands of the transferer; under the 1954 Code, however, its basis for the transferee is zero. Pertinent to all this is the Court's decision in Edwards v. Cuba R. Co., 268 U.S. 628 (1925). The Court there held that subsidies granted by the Cuban Government to a railroad to promote construction in Cuba "were not profits or gains from the use or operation of the railroad," and did not constitute income to the receiving corporation. Id., at 633. The holding in Edwards, taken with § 113 (a) (8) of the 1939 Code, produced a seemingly anomalous result, for it meant that a corporate taxpayer receiving property from a nonshareholder as a contribution to capital not only received the property free from income tax but was allowed to assert a deduction for depreciation on the asset so received tax free. This result also ensued under the Court's holding in Brown Shoe and led to the enactment of the zero-basis *408 provision, referred to above, in § 362 (c) of the 1954 Code, 26 U.S. C. § 362 (c). Veterans Foundation v. Commissioner, 317 F.2d 456, 458 (CA10 1963). CB&Q argues that this very result should follow here. It is said that the railroad received no taxable income and incurred no income tax liability when it received, at governmental expense prior to June 22, 1954, the facilities as to which CB&Q now asserts depreciation. And, in providing the facilities, CB&Q argues, the Government intended to make a contribution to the railroad's capital, within the meaning of § 113 (a) (8), thereby permitting CB&Q to depreciate the Government's cost in the assets. Whether the governmental subsidies qualified as income to the railroad is an issue not raised in this case, and we intimate no opinion with respect to it. The United States, however, asserts that the subsidies did not constitute a "contribution to capital" under § 113 (a) (8), and that, accordingly, the transferee railroad's tax basis is zero and no depreciation deduction is available. Our inquiry, therefore, is a narrow one: whether the nonshareholder payment in this case constituted a "contribution to capital," within the meaning of § 113 (a) (8). Because both Detroit Edison and Brown Shoe bear upon the issue, we turn to those two decisions. II Detroit Edison concerned customers' payments to a utility for the estimated costs of construction of service facilities (primary power lines) that the utility otherwise was not obligated to provide. For its tax years 1936 and 1937, to which the Revenue Act of 1936, 49 Stat. 1648, applied, the utility claimed the full cost of the facilities in its base for computing depreciation. The Commissioner disallowed, for depreciation purposes, that portion of the cost paid by customers and not refundable. The Board of Tax Appeals, 45 B. T. A. 358 (1941), and the *409 Court of Appeals, 131 F.2d 619 (CA6 1942), sustained the Commissioner. This Court affirmed. Mr. Justice Jackson, speaking for a unanimous Court (the Chief Justice not participating), observed. "The end and purpose of it all [depreciation] is to approximate and reflect the financial consequences to the taxpayer of the subtle effects of time and use on the value of his capital assets." 319 U.S., at 101. The statute, § 113 (a) of the 1936 Act, it was said, "means . . . cost to the taxpayer," even though the property "may have a cost history quite different from its cost to the taxpayer." Also, the "taxpayer's outlay is the measure of his recoupment through depreciation accruals." 319 U.S., at 102. The utility's attempt to avoid this result by its contention that the payments were gifts or contributions to its capital, and entitled to the transferors' bases, was rejected. "It is enough to say that it overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company. The transaction neither in form nor in substance bore such a semblance. "The payments were to the customer the price of the service. . . . They have not been taxed as income. . . . But it does not follow that the Company must be permitted to recoup through untaxed depreciation accruals on investment it has refused to make." Id., at 102-103. Detroit Edison, by itself, would appear almost to foreclose CB&Q's claims here, for there is an obvious parallel between the customers' payment for the utility service facilities in Detroit Edison, and the governmental payments for improvements to the railroad's service facilities in the case before us. *410 But Detroit Edison was not the last word. Brown Shoe was decided seven years later, and the opposite tax result was reached by an 8-1 vote of the Court, with Mr. Justice Black in dissent without opinion. Brown Shoe concerned a corporate taxpayer's excess profits tax, under the Second Revenue Act of 1940, 54 Stat. 974, as amended, for its fiscal years 1942 and 1943. Community groups paid cash or transferred property to the taxpayer as an inducement for the location or expansion of factory operations in their communities. Contracts were entered into, and in each instance the taxpayer obligated itself to locate or enlarge a facility in the community and to operate it for at least a minimum term. The value of the payments and transfers was the focus of the controversy between the taxpayer and the Commissioner, for depreciation on the transferred assets was claimed and their inclusion in equity invested capital was asserted. The Tax Court overruled the Commissioner's disallowance with respect to the acquisitions paid for with cash, but sustained the Commissioner with respect to buildings transferred. 10 T.C. 291 (1948). The Court of Appeals upheld the Commissioner on both items. 175 F.2d 305 (CA8 1949). This Court reversed. Mr. Justice Clark, writing the opinion for the majority of the Court, concluded that the assets transferred by the community groups to the taxpayer were contributions to capital, within the meaning of § 113 (a) (8) of the 1939 Code. The Court noted that in time they would wear out and, if the taxpayer continued in business, the physical plant eventually would have to be replaced. Detroit Edison was cited and recognized, but was considered not to be controlling. In Brown Shoe there were "neither customers nor payments for service," and therefore the Court "may infer a different purpose in the transactions between petitioner and the community groups." 339 U.S., at 591. The only expectation of the groups *411 was that "such contributions might prove advantageous to the community at large." Thus, it was said, "the transfers manifested a definite purpose to enlarge the working capital of the company." Ibid. The Court thus professed to distinguish and not at all to overrule Detroit Edison. It did so on an analysis of the purposes behind the respective transfers in the two cases. Where the facts were such that the transferors could not be regarded as having intended to make contributions to the corporation, as in Detroit Edison, the assets transferred were not depreciable. But where the transfers were made with the purpose, not of receiving direct service or recompense, but only of obtaining advantage for the general community, as in Brown Shoe, the result was a contribution to capital. III It seems fair to say that neither in Detroit Edison nor in Brown Shoe did the Court focus upon the use to which the assets transferred were applied, or upon the economic and business consequences for the transferee corporation. Instead, the Court stressed the intent or motive of the transferor and determined the tax character of the transaction by that intent or motive. Thus, the decisional distinction between Detroit Edison and Brown Shoe rested upon the nature of the benefit to the transferor, rather than to the transferee, and upon whether that benefit was direct or indirect, specific or general, certain or speculative.[12] These factors, of course, are simply indicia of the transferor's intent or motive. *412 That this line of inquiry, and these distinctions, have relatively little to do with the economic and business consequences of the transaction seems self-evident.[13] In both cases the assets transferred were actually used in the transferee's trade or business for the production of income. In neither case did the transferee provide the investment for the assets sought to be depreciated. Yet in both cases, the assets in question were transferred for a consideration pursuant to an agreement. If, at first glance, Detroit Edison and Brown Shoe seem somewhat inconsistent, they may be reconciled, and indeed must be, on the ground that in Detroit Edison the transferor intended no contribution to the transferee's capital, whereas in Brown Shoe the transferors did have that intent. The statutory phrase "contribution to capital" is nowhere expressly defined in either the 1939 Code or the 1954 Code, and our prior decisions provide only limited guidance as to its precise meaning. Detroit Edison might be said to be only a holding that a payment for services is not a contribution to capital. Brown Shoe sheds little additional light, for the Court stated only that because the community payments were not compensation for specific services rendered, and did not constitute *413 gifts, they must have been made in order to enlarge the working capital of the company. 339 U.S., at 591. But other characteristics of a contribution to capital are implicit in the two cases and become apparent when viewed in the light of the facts presently before us. In Brown Shoe, for example, the contributed funds were intended to benefit not only the transferors but the transferee as well, for the assets were put to immediate use by the taxpayer for the generation of additional income. Without benefit to the taxpayer, the agreement certainly would not have been made. Perhaps to some extent this was true in Detroit Edison; that taxpayer, however, was a public utility, and the anticipated revenue from the service lines to the customers would not have warranted the investment by the utility itself. 319 U.S., at 99. Its benefit, therefore, was marginal. We can distill from these two cases some of the characteristics of a nonshareholder contribution to capital under the Internal Revenue Codes. It certainly must become a permanent part of the transferee's working capital structure. It may not be compensation, such as a direct payment for a specific, quantifiable service provided for the transferor by the transferee. It must be bargained for. The asset transferred foreseeably must result in benefit to the transferee in an amount commensurate with its value. And the asset ordinarily, if not always, will be employed in or contribute to the production of additional income and its value assured in that respect. By this measure, the assets with which this case is concerned clearly do not qualify as contributions to capital. Although the assets were not payments for specific, quantifiable services performed by CB&Q for the Government as a customer, other characteristics of *414 the transaction lead us to the conclusion that, despite this, the assets did not qualify as contributions to capital. The facilities were not in any real sense bargained for by CB&Q. Indeed, except for the orders by state commissions and the governmental subsidies, the facilities most likely would not have been constructed at all.[14] See Nashville, C. & St. L. R. Co. v. Walters, 294 U.S. 405, 421-424 (1935). The transaction in substance was unilateral: CB&Q would accept the facilities if the Government would require their construction and would pay for them. Any incremental economic benefit to CB&Q from the facilities was marginal; its extent and importance were indicated and accounted for by the requirement that the railroad pay not to exceed 10% of the cost in relation to its own benefit.[15] The facilities were peripheral to its business and did not materially contribute to the production of further income by the railroad. They simply replaced existing facilities or provided new, better, and safer ones where none otherwise would have been deemed necessary. As the Court of Claims found, the facilities were constructed "primarily for the benefit of the public to improve safety and to expedite highway traffic flow,"[16] and the need of the railroad for capital funds was not considered, 197 Ct. Cl., at 326. While some incremental benefit from lower accident rates, from reduced expenses of operating crossing facilities, and from possibly higher train speed might have resulted, these were incidental and insubstantial in relation to the value now sought to be depreciated, and they *415 were presumably considered in computing the railroad's maximum 10% liability under the Act. In our view, no substantial incremental benefit in terms of the production of income was foreseeable or taken into consideration at the time the facilities were transferred. Accordingly, no contribution to capital was effected. CB&Q nevertheless contends that it is entitled to depreciate the facilities because of its obligation to maintain and replace them. Whatever may be the desirability of creating a depreciation reserve under these circumstances, as a matter of good business and accounting practice, the answer is, as Judge Davis of the Court of Claims observed in dissent, 197 Ct. Cl., at 318, 455 F. 2d, at 1025, "Depreciation reflects the cost of an existing capital asset, not the cost of a potential replacement." Reisinger v. Commissioner, 144 F.2d 475, 478 (CA2 1944). See United States v. Ludey, 274 U.S. 295, 300-301 (1927); Weiss v. Wiener, 279 U.S. 333, 335-336 (1929); Helvering v. Lazarus & Co., 308 U.S. 252, 254 (1939); Massey Motors v. United States, 364 U.S. 92 (1960); Fribourg Nav. Co. v. Commissioner, 383 U.S. 272 (1966). We conclude that the governmental subsidies did not constitute contributions to CB&Q's capital, within the meaning of § 113 (a) (8) of the 1939 Code; that the assets in question in the hands of CB&Q have a zero basis, under §§ 113 and 114 of that Code and § 1052 (c) of the 1954 Code, 26 U.S. C. § 1052 (c); and that CB&Q is therefore precluded from claiming a depreciation allowance with respect to those assets.[17] The judgment of the *416 Court of Claims on this issue is reversed and the case is remanded for further proceedings. It is so ordered. MR. JUSTICE POWELL took no part in the consideration or decision of this case. MR.

The issue in this federal income tax case is whether the respondent, Chicago, Burlington & Quincy Railroad Company (CB&Q), an interstate common carrier railroad, may depreciate the cost of certain facilities paid for prior to June 22, 1954, not by it or by its shareholders, but from public funds. Starting about 1930, CB&Q entered into a series of contracts with various Midwestern States. By these agreements the States were to fund some or all of the costs of construction of specified improvements, and the railroad apparently was to bear, at least in part, the costs of maintenance and replacement of the improvements once they had been installed. In 1933, as part of the program of the National Industrial Recovery Act, Congress authorized federal reimbursement to the States of the shares of the costs the States incurred in the construction of those improvements that inured to the benefit of public safety and improved highway traffic control.[1] In Congress went further and authorized reimbursement, with stated limitations, to the States for the entire cost of the improvements, subject to the condition *403 that a railroad that received a benefit from a facility so constructed was liable to the Government for up to 10% of the cost of the project pro rata in relation to the benefit received by the railroad.[2] Under these programs CB&Q received, at public expense, highway undercrossings and overcrossings having a cost of $1,538,543; crossing signals, signs, and floodlights having a cost of $548,877; and jetties and bridges having a cost of $58,721.[3] These improvements, aggregating $2,146,141, were carried on the railroad's books as capital assets even though most of the agreements between CB&Q and the several States did not expressly convey title to the railroad. CB&Q instituted a timely suit in the Court of Claims alleging, among other things, that it had overpaid its 1955 federal income tax because it had failed to assert, as a deduction on its return as filed, allowable depreciation on the subsidized assets.[4] By a 4-to-3 decision on this issue (only one of several in the case), the Court of Claims concluded that, under 167 of the Internal Revenue Code of 1954, 26 U.S. C. 167, CB&Q was entitled to the depreciation deduction it claimed. This was on the theory that the subsidies qualified as contributions to the railroad's capital under 362 and 1052 (c) of that *404 Code, 26 U.S. C. 362 and 1052 (c), and under 113 (a) (8) of the Internal Revenue Code of 1939. In arriving at this conclusion, the Court of Claims majority relied on Brown Shoe and reasoned that, even though the governmental payments for the facilities may not have been intended as contributions to the railroad's capital, the "principal purpose" being, instead, "to benefit the community-at-large," 455 F. 2d, at 1000, the facilities did in fact enlarge the railroad's working capital, were used in its business, and produced economic benefits for it, thereby qualifying as contributions to its capital under the cited section of the 1939 Code. The three dissenting judges disagreed with this interpretation of Brown Shoe, and, instead, relied on Detroit Edison They concluded that the critical features were the donor's attitude, purpose, and intent, and that, with governmental payments, there could be no intention to confer a benefit upon CB&Q. Instead, as the findings revealed,[5] the intention was to expedite traffic flow and to improve public safety at highway-railroad crossings. 1026. Because the Court of Claims decision apparently would afford a precedent for the tax treatment of substantial sums,[6] we granted certiorari. *405 I Section 23 (l) of the 1939 Code and its successor, 167 (a) of the 1954 Code, 26 U.S. C. 167 (a), allow a taxpayer "as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear of property used in the trade or business." In the usual situation the taxpayer himself incurs cost in acquiring the assets as to which the depreciation deduction is asserted.[7] But there are other and different situations formally recognized in the governing tax statutes. A familiar example is gift property.[8] Another is property acquired by a corporation *406 from its shareholders as paid-in surplus or as a contribution to capital.[9] Another, and the one that is pertinent here, is covered by 113 (a) (8)[10] of the 1939 Code and by the contrasting provisions of 362 (a) and (c) of the 1954 Code, 26 U.S. C. 362 (a) and (c).[11]*407 This concerns a contribution to capital by a nonshareholder. See Treas. Reg. 111, 29.113 (a) (8)-1 Under 113 (a) (8) and 114 (a) of the earlier Code, the nonshareholder-contributed asset in the hands of the receiving corporation had the same basis, subject to adjustment, for depreciation purposes as it had in the hands of the transferer; under the 1954 Code, however, its basis for the transferee is zero. Pertinent to all this is the Court's decision in The Court there held that subsidies granted by the Cuban Government to a railroad to promote construction in Cuba "were not profits or gains from the use or operation of the railroad," and did not constitute income to the receiving corporation. The holding in Edwards, taken with 113 (a) (8) of the 1939 Code, produced a seemingly anomalous result, for it meant that a corporate taxpayer receiving property from a nonshareholder as a contribution to capital not only received the property free from income tax but was allowed to assert a deduction for depreciation on the asset so received tax free. This result also ensued under the Court's holding in Brown Shoe and led to the enactment of the zero-basis *408 provision, referred to above, in 362 (c) of the 1954 Code, 26 U.S. C. 362 (c). Veterans CB&Q argues that this very result should follow here. It is said that the railroad received no taxable income and incurred no income tax liability when it received, at governmental expense prior to June 22, 1954, the facilities as to which CB&Q now asserts depreciation. And, in providing the facilities, CB&Q argues, the Government intended to make a contribution to the railroad's capital, within the meaning of 113 (a) (8), thereby permitting CB&Q to depreciate the Government's cost in the assets. Whether the governmental subsidies qualified as income to the railroad is an issue not raised in this case, and we intimate no opinion with respect to it. The United States, however, asserts that the subsidies did not constitute a "contribution to capital" under 113 (a) (8), and that, accordingly, the transferee railroad's tax basis is zero and no depreciation deduction is available. Our inquiry, therefore, is a narrow one: whether the nonshareholder payment in this case constituted a "contribution to capital," within the meaning of 113 (a) (8). Because both Detroit Edison and Brown Shoe bear upon the issue, we turn to those two decisions. II Detroit Edison concerned customers' payments to a utility for the estimated costs of construction of service facilities (primary power lines) that the utility otherwise was not obligated to provide. For its tax years 1936 and 1937, to which the Revenue Act of 1936, applied, the utility claimed the full cost of the facilities in its base for computing depreciation. The Commissioner disallowed, for depreciation purposes, that portion of the cost paid by customers and not refundable. The Board of Tax Appeals, 45 B. T. A. 358 (1941), and the *409 Court of Appeals, sustained the Commissioner. This Court affirmed. Mr. Justice Jackson, speaking for a unanimous Court (the Chief Justice not participating), observed. "The end and purpose of it all [depreciation] is to approximate and reflect the financial consequences to the taxpayer of the subtle effects of time and use on the value of his capital assets." The statute, 113 (a) of the 1936 Act, it was said, "means cost to the taxpayer," even though the property "may have a cost history quite different from its cost to the taxpayer." Also, the "taxpayer's outlay is the measure of his recoupment through depreciation accruals." The utility's attempt to avoid this result by its contention that the payments were gifts or contributions to its capital, and entitled to the transferors' bases, was rejected. "It is enough to say that it overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company. The transaction neither in form nor in substance bore such a semblance. "The payments were to the customer the price of the service. They have not been taxed as income. But it does not follow that the Company must be permitted to recoup through untaxed depreciation accruals on investment it has refused to make." Detroit Edison, by itself, would appear almost to foreclose CB&Q's claims here, for there is an obvious parallel between the customers' payment for the utility service facilities in Detroit Edison, and the governmental payments for improvements to the railroad's service facilities in the case before us. *410 But Detroit Edison was not the last word. Brown Shoe was decided seven years later, and the opposite tax result was reached by an 8-1 vote of the Court, with Mr. Justice Black in dissent without opinion. Brown Shoe concerned a corporate taxpayer's excess profits tax, under the Second Revenue Act of 1940, as amended, for its fiscal years and 1943. Community groups paid cash or transferred property to the taxpayer as an inducement for the location or expansion of factory operations in their communities. Contracts were entered into, and in each instance the taxpayer obligated itself to locate or enlarge a facility in the community and to operate it for at least a minimum term. The value of the payments and transfers was the focus of the controversy between the taxpayer and the Commissioner, for depreciation on the transferred assets was claimed and their inclusion in equity invested capital was asserted. The Tax Court overruled the Commissioner's disallowance with respect to the acquisitions paid for with cash, but sustained the Commissioner with respect to buildings transferred. The Court of Appeals upheld the Commissioner on both items. This Court reversed. Mr. Justice Clark, writing the opinion for the majority of the Court, concluded that the assets transferred by the community groups to the taxpayer were contributions to capital, within the meaning of 113 (a) (8) of the 1939 Code. The Court noted that in time they would wear out and, if the taxpayer continued in business, the physical plant eventually would have to be replaced. Detroit Edison was cited and recognized, but was considered not to be controlling. In Brown Shoe there were "neither customers nor payments for service," and therefore the Court "may infer a different purpose in the transactions between petitioner and the community groups." The only expectation of the groups *411 was that "such contributions might prove advantageous to the community at large." Thus, it was said, "the transfers manifested a definite purpose to enlarge the working capital of the " The Court thus professed to distinguish and not at all to overrule Detroit Edison. It did so on an analysis of the purposes behind the respective transfers in the two cases. Where the facts were such that the transferors could not be regarded as having intended to make contributions to the corporation, as in Detroit Edison, the assets transferred were not depreciable. But where the transfers were made with the purpose, not of receiving direct service or recompense, but only of obtaining advantage for the general community, as in Brown Shoe, the result was a contribution to capital. III It seems fair to say that neither in Detroit Edison nor in Brown Shoe did the Court focus upon the use to which the assets transferred were applied, or upon the economic and business consequences for the transferee corporation. Instead, the Court stressed the intent or motive of the transferor and determined the tax character of the transaction by that intent or motive. Thus, the decisional distinction between Detroit Edison and Brown Shoe rested upon the nature of the benefit to the transferor, rather than to the transferee, and upon whether that benefit was direct or indirect, specific or general, certain or speculative.[12] These factors, of course, are simply indicia of the transferor's intent or motive. *412 That this line of inquiry, and these distinctions, have relatively little to do with the economic and business consequences of the transaction seems self-evident.[13] In both cases the assets transferred were actually used in the transferee's trade or business for the production of income. In neither case did the transferee provide the investment for the assets sought to be depreciated. Yet in both cases, the assets in question were transferred for a consideration pursuant to an agreement. If, at first glance, Detroit Edison and Brown Shoe seem somewhat inconsistent, they may be reconciled, and indeed must be, on the ground that in Detroit Edison the transferor intended no contribution to the transferee's capital, whereas in Brown Shoe the transferors did have that intent. The statutory phrase "contribution to capital" is nowhere expressly defined in either the 1939 Code or the 1954 Code, and our prior decisions provide only limited guidance as to its precise meaning. Detroit Edison might be said to be only a holding that a payment for services is not a contribution to capital. Brown Shoe sheds little additional light, for the Court stated only that because the community payments were not compensation for specific services rendered, and did not constitute *413 gifts, they must have been made in order to enlarge the working capital of the But other characteristics of a contribution to capital are implicit in the two cases and become apparent when viewed in the light of the facts presently before us. In Brown Shoe, for example, the contributed funds were intended to benefit not only the transferors but the transferee as well, for the assets were put to immediate use by the taxpayer for the generation of additional income. Without benefit to the taxpayer, the agreement certainly would not have been made. Perhaps to some extent this was true in Detroit Edison; that taxpayer, however, was a public utility, and the anticipated revenue from the service lines to the customers would not have warranted the investment by the utility Its benefit, therefore, was marginal. We can distill from these two cases some of the characteristics of a nonshareholder contribution to capital under the Internal Revenue Codes. It certainly must become a permanent part of the transferee's working capital structure. It may not be compensation, such as a direct payment for a specific, quantifiable service provided for the transferor by the transferee. It must be bargained for. The asset transferred foreseeably must result in benefit to the transferee in an amount commensurate with its value. And the asset ordinarily, if not always, will be employed in or contribute to the production of additional income and its value assured in that respect. By this measure, the assets with which this case is concerned clearly do not qualify as contributions to capital. Although the assets were not payments for specific, quantifiable services performed by CB&Q for the Government as a customer, other characteristics of *414 the transaction lead us to the conclusion that, despite this, the assets did not qualify as contributions to capital. The facilities were not in any real sense bargained for by CB&Q. Indeed, except for the orders by state commissions and the governmental subsidies, the facilities most likely would not have been constructed at all.[14] See Nashville, C. & St. L. R. The transaction in substance was unilateral: CB&Q would accept the facilities if the Government would require their construction and would pay for them. Any incremental economic benefit to CB&Q from the facilities was marginal; its extent and importance were indicated and accounted for by the requirement that the railroad pay not to exceed 10% of the cost in relation to its own benefit.[15] The facilities were peripheral to its business and did not materially contribute to the production of further income by the railroad. They simply replaced existing facilities or provided new, better, and safer ones where none otherwise would have been deemed necessary. As the Court of Claims found, the facilities were constructed "primarily for the benefit of the public to improve safety and to expedite highway traffic flow,"[16] and the need of the railroad for capital funds was not considered, While some incremental benefit from lower accident rates, from reduced expenses of operating crossing facilities, and from possibly higher train speed might have resulted, these were incidental and insubstantial in relation to the value now sought to be depreciated, and they *415 were presumably considered in computing the railroad's maximum 10% liability under the Act. In our view, no substantial incremental benefit in terms of the production of income was foreseeable or taken into consideration at the time the facilities were transferred. Accordingly, no contribution to capital was effected. CB&Q nevertheless contends that it is entitled to depreciate the facilities because of its obligation to maintain and replace them. Whatever may be the desirability of creating a depreciation reserve under these circumstances, as a matter of good business and accounting practice, the answer is, as Judge Davis of the Court of Claims observed in dissent, 455 F. 2d, at 1025, "Depreciation reflects the cost of an existing capital asset, not the cost of a potential replacement." See United ; ; ; Massey ; Fribourg Nav. We conclude that the governmental subsidies did not constitute contributions to CB&Q's capital, within the meaning of 113 (a) (8) of the 1939 Code; that the assets in question in the hands of CB&Q have a zero basis, under 113 and 114 of that Code and 1052 (c) of the 1954 Code, 26 U.S. C. 1052 (c); and that CB&Q is therefore precluded from claiming a depreciation allowance with respect to those assets.[17] The judgment of the *416 Court of Claims on this issue is reversed and the case is remanded for further proceedings. It is so ordered. MR. JUSTICE POWELL took no part in the consideration or decision of this case. MR.

per_curiam

per_curiam

Connor v. Johnson

https://www.courtlistener.com/opinion/108353/connor-v-johnson/

https://www.courtlistener.com/api/rest/v3/clusters/108353/

1970-118

On May 14, 1971, a three-judge District Court, convened in the Southern District of Mississippi, invalidated the Mississippi Legislature's latest reapportionment statute as allowing impermissibly large variations among House and Senate districts. The parties were requested by the court to submit suggested plans, and the applicants did so on May 17. All four plans suggested by applicants utilized single-member districts exclusively *691 in Hinds County. The following day, May 18, the court issued its own plan, which included single-and multi-member districts in each House; Hinds County was constituted as a multi-member district electing five senators and 12 representatives. The court expressed some reluctance over use of multi-member districts in counties electing four or more senators or representatives, saying: "[I]t would be ideal if [such counties] could be divided into districts, for the election of one member [from] the district." However, in view of the June 4, 1971, deadline for filing notices of candidacy, the court concluded that: "[W]ith the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly to divide these counties into districts for the election of single members of the Senate or the House in time for the elections of 1971." The court promised to appoint a special master in January 1972 to investigate the possibility of single-member districts for the general elections of 1975 and 1979. Applicants moved the District Court to stay its order. The motion was denied on May 24. Applicants have now applied to this Court for a stay of the District Court's order and for an extension of the June 4 filing deadline until the District Court shall have provided single-member districts in Hinds County, or until the Attorney General or the District Court for the District of Columbia approves the District Court's apportionment plan under Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S. C. § 1973c (1964 ed., Supp. V). Insofar as applicants ask relief under the Voting Rights Act the motion for stay is denied. A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act. However, other reasons lead us to grant the motion to the extent indicated below. *692 In failing to devise single-member districts, the court was under the belief that insufficient time remained until June 4, the deadline for the filing of notices of candidacy. Yet at that time June 4 was 17 days away and, according to an uncontradicted statement in the brief supporting this motion, the applicants were able to formulate and offer to the court four single-member district plans for Hinds County in the space of three days. Also according to uncontradicted statements, these plans were based on data which included county maps showing existing political subdivisions, the supervisory districts used by the Census Bureau for the taking of the 1970 census, official 1970 Census Bureau "final population counts," and "computer print-out from Census Bureau official computer tapes showing total and white/Negro population by census enumeration districts." Applicants also assert that no other population figures will subsequently become available. The District Court's judgment was that single-member districting would be "ideal" for Hinds County. We agree that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter. Furthermore, given the census information apparently available and the dispatch with which the applicants devised suggested plans for the District Court, it is our view that, on this record, the District Court had ample time to devise single-member districts for Hinds County prior to the June 4 filing deadline. While meeting the June 4 date is no longer possible, there is nothing before us to suggest any insurmountable barrier to devising such a plan by June 14, 1971. Therefore the motion for stay is granted and the judgment below is stayed until June 14. The District Court is instructed, absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County by that date. *693 In light of this disposition, the District Court is directed to extend the June 4 filing date for legislative candidates from Hinds County to an appropriate date so that those candidates and the State of Mississippi may act in light of the new districts into which Hinds County will be divided. It is so ordered. THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE HARLAN dissent and reserve the right to file an opinion to that effect. MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR.

On May 14, 1971, a three-judge District Court, convened in the Southern District of Mississippi, invalidated the Mississippi Legislature's latest reapportionment statute as allowing impermissibly large variations among House and Senate districts. The parties were requested by the court to submit suggested plans, and the applicants did so on May 17. All four plans suggested by applicants utilized single-member districts exclusively *691 in Hinds County. The following day, May 18, the court issued its own plan, which included single-and multi-member districts in each House; Hinds County was constituted as a multi-member district electing five senators and 12 representatives. The court expressed some reluctance over use of multi-member districts in counties electing four or more senators or representatives, saying: "[I]t would be ideal if [such counties] could be divided into districts, for the election of one member [from] the district." However, in view of the June 4, 1971, deadline for filing notices of candidacy, the court concluded that: "[W]ith the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly to divide these counties into districts for the election of single members of the Senate or the House in time for the elections of 1971." The court promised to appoint a special master in January 1972 to investigate the possibility of single-member districts for the general elections of 1975 and 1979. Applicants moved the District Court to stay its order. The motion was denied on May 24. Applicants have now applied to this Court for a stay of the District Court's order and for an extension of the June 4 filing deadline until the District Court shall have provided single-member districts in Hinds County, or until the Attorney General or the District Court for the District of Columbia approves the District Court's apportionment plan under Section 5 of the Voting Rights Act of 1965, 42 U.S. C. 1973c (1964 ed., Supp. V). Insofar as applicants ask relief under the Voting Rights Act the motion for stay is denied. A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act. However, other reasons lead us to grant the motion to the extent indicated below. *692 In failing to devise single-member districts, the court was under the belief that insufficient time remained until June 4, the deadline for the filing of notices of candidacy. Yet at that time June 4 was 17 days away and, according to an uncontradicted statement in the brief supporting this motion, the applicants were able to formulate and offer to the court four single-member district plans for Hinds County in the space of three days. Also according to uncontradicted statements, these plans were based on data which included county maps showing existing political subdivisions, the supervisory districts used by the Census Bureau for the taking of the 1970 census, official 1970 Census Bureau "final population counts," and "computer print-out from Census Bureau official computer tapes showing total and white/Negro population by census enumeration districts." Applicants also assert that no other population figures will subsequently become available. The District Court's judgment was that single-member districting would be "ideal" for Hinds County. We agree that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter. Furthermore, given the census information apparently available and the dispatch with which the applicants devised suggested plans for the District Court, it is our view that, on this record, the District Court had ample time to devise single-member districts for Hinds County prior to the June 4 filing deadline. While meeting the June 4 date is no longer possible, there is nothing before us to suggest any insurmountable barrier to devising such a plan by June 14, 1971. Therefore the motion for stay is granted and the judgment below is stayed until June 14. The District Court is instructed, absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County by that date. *693 In light of this disposition, the District Court is directed to extend the June 4 filing date for legislative candidates from Hinds County to an appropriate date so that those candidates and the State of Mississippi may act in light of the new districts into which Hinds County will be divided. It is so ordered. THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE HARLAN dissent and reserve the right to file an opinion to that effect. MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR.

per_curiam

per_curiam

MTM, Inc. v. Baxley

https://www.courtlistener.com/opinion/109226/mtm-inc-v-baxley/

https://www.courtlistener.com/api/rest/v3/clusters/109226/

1974-078

The State of Alabama brought suit against appellant MTM in state court under the Alabama nuisance law, Ala. Code, Tit. 7, §§ 1081-1108 (1958),[1] seeking to enjoin the continued operation of a nuisance by MTM. It alleged that because of convictions for violations of *800 local obscenity laws by the Pussycat Adult Theater, an enterprise owned by MTM in Birmingham, Ala., the theater constituted a nuisance under this statute.[2] After a hearing on the complaint, the state court issued a temporary injunction under the nuisance law, closing the theater.[3] After issuance of the temporary injunction and while action on the request for a permanent injunction was pending in state court, appellant filed this action in the United States District Court for the Northern District of Alabama under the Civil Rights Act of 1871, 42 U.S. C. § 1983. It asked the federal court to enjoin enforcement of the state-court temporary injunction and to declare the Alabama nuisance law unconstitutional. Appellant claimed that the challenged statutory provisions and the state-court temporary injunction infringed its First, Fifth, and Fourteenth Amendment rights. A three-judge federal court was convened pursuant to 28 U.S. C. § 2281 to consider appellant's complaint. Without resolving the constitutional merits of the complaint, the three-judge court dismissed the complaint without prejudice.[4] In view of the pendency of the state proceedings, the three-judge District Court applied *801 the test enunciated in Younger v. Harris, 401 U.S. 37 (1971),[5] and concluded that federal intervention as requested by appellant would be improper. Appellant has brought the case directly to this Court, asserting that jurisdiction exists under 28 U.S. C. § 1253, and arguing that the requirements of Younger v. Harris, supra, did not preclude relief on these facts. We noted probable jurisdiction over this appeal and set this case for argument in tandem with Huffman v. Pursue, Ltd., ante, p. 592. 415 U.S. 974 (1974). Unless jurisdiction over this direct appeal from the three-judge court decision below is conferred by 28 U.S. C. § 1253, we are without authority to entertain it.[6] Section 1253 provides: "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil *802 action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." Appellant argues that its complaint presented a "suit . . . required . . . to be heard" by a three-judge court[7] and that the dismissal of its complaint seeking injunctive relief constituted "an order . . . denying . . . an interlocutory or permanent injunction" within the meaning of § 1253. In Gonzalez v. Employees Credit Union, 419 U.S. 90 (1974), we recently discussed in some detail the question of what constitutes an order "denying" injunctive relief for purposes of § 1253. There we held that direct appeal to this Court under § 1253 did not lie from the order of a three-judge court dismissing a complaint because of an absence of standing where the three-judge court did not reach the merits of the constitutional claim presented. Although our decision rested at least partially on the ground that a three-judge court was not "required" where the ground for decision below was an absence of standing, 419 U.S., at 100, we also explored the question of whether an order of a three-judge court "denies" an injunction, for purposes of § 1253, where there is no adverse resolution of the constitutional claims presented. Although noting that certain decisions of this Court and a literal reading of § 1253 might be taken to support the notion that a denial of injunctive relief on any basis by a three-judge court is within the purview of § 1253, we concluded that stare decisis is entitled to *803 less than its usual weight in this area, and that "the opaque terms and prolix syntax" of this statute were not capable of literal reading. 419 U.S., at 96-97. In focusing on the question of whether direct review by this Court under § 1253 is available in the absence of a three-judge court decision resting on resolution of the constitutional merits of a complaint, we stated: "Mercantile argues that § 1253 should be read to limit our direct review of three-judge-court orders denying injunctions to those that rest upon resolution of the constitutional merits of the case. There would be evident virtues to this rule. It would lend symmetry to the Court's jurisdiction since, in reviewing orders granting injunctions, the Court is necessarily dealing with a resolution of the merits. While issues short of the merits—such as justiciability, subject-matter jurisdiction, equitable jurisdiction, and abstention—are often of more than trivial consequence, that alone does not argue for our reviewing them on direct appeal. Discretionary review in any case would remain available, informed by the mediating wisdom of a court of appeals. Furthermore, the courts of appeals might in many instances give more detailed consideration to these issues than this Court, which disposes of most mandatory appeals in summary fashion." 419 U.S., at 99. The conflicting decisions of this Court on the question of whether § 1253 jurisdiction attaches where a three-judge federal court fails to reach the merits of a constitutional claim for injunctive relief do not provide a consistent answer to this question. Compare Lynch v. Household Finance Corp., 405 U.S. 538 (1972), with Mengelkoch v. Industrial Welfare Comm'n, 393 U.S. 83 (1968); Rosado v. Wyman, 395 U.S. 826 (1969); Mitchell v. Donovan, 398 U.S. 427 (1970). See Gonzalez v. *804 Employees Credit Union, supra, at 95 n. 11; 9 J. Moore, Federal Practice ¶ 110.03 [3], pp. 76-79 (2d ed. 1973). It is certain that the congressional policy behind the three-judge court and direct-review apparatus— the saving of state and federal statutes from improvident doom at the hands of a single judge—will not be impaired by a narrow construction of § 1253. A broad construction of the statute, on the other hand, would be at odds with the historic congressional policy of minimizing the mandatory docket of this Court in the interest of sound judicial administration. Phillips v. United States, 312 U.S. 246, 250-251 (1941); Gonzalez v. Employees Credit Union, supra, at 98. In light of these factors, we conclude that a direct appeal will lie to this Court under § 1253 from the order of a three-judge federal court denying interlocutory or permanent injunctive relief only where such order rests upon resolution of the merits of the constitutional claim presented below. In the instant case, the three-judge court below did not reach the merits of appellant's constitutional attack on the Alabama statute and instead based its order on the impropriety of federal intervention under our decision in Younger v. Harris, 401 U.S. 37 (1971). In such circumstances, we are without jurisdiction to consider this appeal. The correctness of the application of Younger on these facts by the District Court is for the Court of Appeals to determine. Accordingly, we vacate the order before us and remand this case to the District Court so that a fresh order may be entered and a timely appeal prosecuted to the Court of Appeals.[8] It is so ordered. *805 MR. JUSTICE WHITE, concurring in the result. The Court holds that dismissing a suit on Younger v. Harris, 401 U.S. 37 (1971), grounds is not an order denying an injunction for the purposes of 28 U.S. C. § 1253 and is therefore not appealable directly to this Court, even assuming that the order could be issued only by a three-judge court. I agree with the result but not with this mode of achieving it. If only a three-judge court may order such a dismissal, I have great difficulty in excluding such an order from the reach of the plain terms of § 1253. The sole justification for so manhandling the language of the section is to avoid our hearing a direct appeal on a nonconstitutional issue of federal law that has little if any connection with the reasons for requiring either three-judge courts or direct review of their decisions. That procedure was adopted to protect state statutes from improvident injunctions issued by a single federal judge on federal constitutional grounds. The more straightforward approach to this case would be to hold that decisions on issues other than requests for injunctive relief challenging the constitutionality of state statutes need not be made by three judges but rather are to be made or deemed to be made by single-judge courts whose decisions are appealable only to the courts of appeals. Proceeding in this manner would require no more than construing 28 U.S. C. §§ 2281 and 2284 (3) and (4), in the light of their original purpose, as applying only to orders granting or denying interlocutory or permanent injunctions where the constitutionality of state statutes is involved. This approach may appear to be at odds with Idlewild Liquor Corp. v. Epstein, 370 U.S. 713 (1962). There the Court held that a three-judge court is required where a statute was challenged on constitutional grounds but where a single judge ordered abstention pending presentation *806 of the issues to a state court. The court ruled that as long as the constitutional issue was substantial, a basis for equitable relief was at least alleged in the complaint, and the other requirements for three-judge-court juristiction were satisfied, a three-judge court must be convened. But even within this holding, if it appears on the face of the complaint that there is no ground for equitable relief, there would be no necessity for convening a three-judge court. A single judge should be able to dismiss such a case, therefore, if the pleadings show that there is litigation pending in the state court in which the constitutional challenge could be presented and nothing is alleged to excuse federal intervention.[1] Even if grounds for equitable relief are alleged in a complaint, a single judge should be able to rule on a motion to dismiss based on Younger v. Harris grounds. Much water has gone over the dam since Idlewild was decided. For one thing, in Swift & Co. v. Wickham, 382 U.S. 111 (1965), the Court made very plain that the three-judge-court requirement applied only to injunction suits depending entirely upon a substantive provision of the Constitution; injunctions by a single judge could be granted or denied where the claim of invalidity rested on a conflict with a federal statute. In Swift, the "statutory" claim was joined with the constitutional issue, but *807 the latter was deemed frivolous, leaving only the statutory issue for which three judges were not required. But in Hagans v. Lavine, 415 U.S. 528, 543-545 (1974), we held that even where the statutory claim is joined with a substantial constitutional claim, the former could be, and should be, decided first by a single judge. The plain import of these cases is that three judges are not required merely because a complaint states a cause of action for an injunction based on a constitutional challenge to a state statute. All non-three-judge-court issues may be sorted out and tried by a single judge. Cases like Idlewild are derelicts and should be expressly cleared from the scene.[2] Gonzalez v. Employees Credit Union, 419 U.S. 90 (1974), has shown the way and I would follow its lead. This is especially desirable in this case; for the result of the Court's holding is to require a three-judge court to pass on Younger v. Harris issues and to direct appeals from those orders to the court of appeals, where they would normally be heard again by three judges. This is an exorbitant expenditure of judicial manpower, and without reason in light of our cases. MR.

The State of Alabama brought suit against appellant MTM in state court under the Alabama nuisance law, Ala. Code, Tit. 7, 1081-1108 (1958),[1] seeking to enjoin the continued operation of a nuisance by MTM. It alleged that because of convictions for violations of *800 local obscenity laws by the Pussycat Adult Theater, an enterprise owned by MTM in Birmingham, Ala., the theater constituted a nuisance under this statute.[2] After a hearing on the complaint, the state court issued a temporary injunction under the nuisance law, closing the theater.[3] After issuance of the temporary injunction and while action on the request for a permanent injunction was pending in state court, appellant filed this action in the United States District Court for the Northern District of Alabama under the Civil Rights Act of 1871, 42 U.S. C. 1983. It asked the federal court to enjoin enforcement of the state-court temporary injunction and to declare the Alabama nuisance law unconstitutional. Appellant claimed that the challenged statutory provisions and the state-court temporary injunction infringed its First, Fifth, and Fourteenth Amendment rights. A three-judge federal court was convened pursuant to 28 U.S. C. 2281 to consider appellant's complaint. Without resolving the constitutional merits of the complaint, the three-judge court dismissed the complaint without prejudice.[4] In view of the pendency of the state proceedings, the three-judge District Court applied *801 the test enunciated in[5] and concluded that federal intervention as requested by appellant would be improper. Appellant has brought the case directly to this Court, asserting that jurisdiction exists under 28 U.S. C. 1253, and arguing that the requirements of did not preclude relief on these facts. We noted probable jurisdiction over this appeal and set this case for argument in tandem with Unless jurisdiction over this direct appeal from the three-judge court decision below is conferred by 28 U.S. C. 1253, we are without authority to entertain it.[6] Section 1253 provides: "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil *802 action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." Appellant argues that its complaint presented a "suit required to be heard" by a three-judge court[7] and that the dismissal of its complaint seeking injunctive relief constituted "an order denying an interlocutory or permanent injunction" within the meaning of 1253. In we recently discussed in some detail the question of what constitutes an order "denying" injunctive relief for purposes of 1253. There we held that direct appeal to this Court under 1253 did not lie from the order of a three-judge court dismissing a complaint because of an absence of standing where the three-judge court did not reach the merits of the constitutional claim presented. Although our decision rested at least partially on the ground that a three-judge court was not "required" where the ground for decision below was an absence of standing, we also explored the question of whether an order of a three-judge court "denies" an injunction, for purposes of 1253, where there is no adverse resolution of the constitutional claims presented. Although noting that certain decisions of this Court and a literal reading of 1253 might be taken to support the notion that a denial of injunctive relief on any basis by a three-judge court is within the purview of 1253, we concluded that stare decisis is entitled to *803 less than its usual weight in this area, and that "the opaque terms and prolix syntax" of this statute were not capable of literal -97. In focusing on the question of whether direct review by this Court under 1253 is available in the absence of a three-judge court decision resting on resolution of the constitutional merits of a complaint, we stated: "Mercantile argues that 1253 should be read to limit our direct review of three-judge-court orders denying injunctions to those that rest upon resolution of the constitutional merits of the case. There would be evident virtues to this rule. It would lend symmetry to the Court's jurisdiction since, in reviewing orders granting injunctions, the Court is necessarily dealing with a resolution of the merits. While issues short of the merits—such as justiciability, subject-matter jurisdiction, equitable jurisdiction, and abstention—are often of more than trivial consequence, that alone does not argue for our reviewing them on direct appeal. Discretionary review in any case would remain available, informed by the mediating wisdom of a court of appeals. Furthermore, the courts of appeals might in many instances give more detailed consideration to these issues than this Court, which disposes of most mandatory appeals in summary fashion." The conflicting decisions of this Court on the question of whether 1253 jurisdiction attaches where a three-judge federal court fails to reach the merits of a constitutional claim for injunctive relief do not provide a consistent answer to this question. Compare with ; ; See Gonzalez v. *804 Employees Credit at 95 n. 11; 9 J. Moore, Federal Practice ¶ 110.03 [3], pp. 76-79 (2d ed. 1973). It is certain that the congressional policy behind the three-judge court and direct-review apparatus— the saving of state and federal statutes from improvident doom at the hands of a single judge—will not be impaired by a narrow construction of 1253. A broad construction of the statute, on the other hand, would be at odds with the historic congressional policy of minimizing the mandatory docket of this Court in the interest of sound judicial administration. ; In light of these factors, we conclude that a direct appeal will lie to this Court under 1253 from the order of a three-judge federal court denying interlocutory or permanent injunctive relief only where such order rests upon resolution of the merits of the constitutional claim presented below. In the instant case, the three-judge court below did not reach the merits of appellant's constitutional attack on the Alabama statute and instead based its order on the impropriety of federal intervention under our decision in In such circumstances, we are without jurisdiction to consider this appeal. The correctness of the application of Younger on these facts by the District Court is for the Court of Appeals to determine. Accordingly, we vacate the order before us and remand this case to the District Court so that a fresh order may be entered and a timely appeal prosecuted to the Court of Appeals.[8] It is so ordered. *805 MR. JUSTICE WHITE, concurring in the result. The Court holds that dismissing a suit on grounds is not an order denying an injunction for the purposes of 28 U.S. C. 1253 and is therefore not appealable directly to this Court, even assuming that the order could be issued only by a three-judge court. I agree with the result but not with this mode of achieving it. If only a three-judge court may order such a dismissal, I have great difficulty in excluding such an order from the reach of the plain terms of 1253. The sole justification for so manhandling the language of the section is to avoid our hearing a direct appeal on a nonconstitutional issue of federal law that has little if any connection with the reasons for requiring either three-judge courts or direct review of their decisions. That procedure was adopted to protect state statutes from improvident injunctions issued by a single federal judge on federal constitutional grounds. The more straightforward approach to this case would be to hold that decisions on issues other than requests for injunctive relief challenging the constitutionality of state statutes need not be made by three judges but rather are to be made or deemed to be made by single-judge courts whose decisions are appealable only to the courts of appeals. Proceeding in this manner would require no more than construing 28 U.S. C. 2281 and 2284 (3) and (4), in the light of their original purpose, as applying only to orders granting or denying interlocutory or permanent injunctions where the constitutionality of state statutes is involved. This approach may appear to be at odds with Idlewild Liquor There the Court held that a three-judge court is required where a statute was challenged on constitutional grounds but where a single judge ordered abstention pending presentation *806 of the issues to a state court. The court ruled that as long as the constitutional issue was substantial, a basis for equitable relief was at least alleged in the complaint, and the other requirements for three-judge-court juristiction were satisfied, a three-judge court must be convened. But even within this holding, if it appears on the face of the complaint that there is no ground for equitable relief, there would be no necessity for convening a three-judge court. A single judge should be able to dismiss such a case, therefore, if the pleadings show that there is litigation pending in the state court in which the constitutional challenge could be presented and nothing is alleged to excuse federal intervention.[1] Even if grounds for equitable relief are alleged in a complaint, a single judge should be able to rule on a motion to dismiss based on grounds. Much water has gone over the dam since Idlewild was decided. For one thing, in Swift & the Court made very plain that the three-judge-court requirement applied only to injunction suits depending entirely upon a substantive provision of the Constitution; injunctions by a single judge could be granted or denied where the claim of invalidity rested on a conflict with a federal statute. In Swift, the "statutory" claim was joined with the constitutional issue, but *807 the latter was deemed frivolous, leaving only the statutory issue for which three judges were not required. But in we held that even where the statutory claim is joined with a substantial constitutional claim, the former could be, and should be, decided first by a single judge. The plain import of these cases is that three judges are not required merely because a complaint states a cause of action for an injunction based on a constitutional challenge to a state statute. All non-three-judge-court issues may be sorted out and tried by a single judge. Cases like Idlewild are derelicts and should be expressly cleared from the scene.[2] has shown the way and I would follow its lead. This is especially desirable in this case; for the result of the Court's holding is to require a three-judge court to pass on issues and to direct appeals from those orders to the court of appeals, where they would normally be heard again by three judges. This is an exorbitant expenditure of judicial manpower, and without reason in light of our cases. MR.

Justice Marshall

dissenting

New York v. Quarles

https://www.courtlistener.com/opinion/111214/new-york-v-quarles/

https://www.courtlistener.com/api/rest/v3/clusters/111214/

1983-127

The police in this case arrested a man suspected of possessing a firearm in violation of New York law. Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation. Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The majority concludes that the State may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in Miranda v. Arizona, 384 U.S. 436 (1966), and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this Court's longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions. I dissent. I Shortly after midnight on September 11, 1980, Officer Kraft and three other policemen entered an A & P supermarket in search of respondent Quarles, a rape suspect who was reportedly armed. After a brief chase, the officers cornered Quarles in the back of the store. As the other officers trained their guns on the suspect, Officer Kraft frisked Quarles and discovered an empty shoulder holster. Officer Kraft then handcuffed Quarles, and the other officers holstered their guns. With Quarles' hands manacled behind *675 his back and the other officers standing close by, Officer Kraft questioned Quarles: "Where is the gun?" Gesturing towards a stack of liquid-soap cartons a few feet away, Quarles responded: "The gun is over there." Behind the cartons, the police found a loaded revolver. The State of New York subsequently failed to prosecute the alleged rape, and charged Quarles on a solitary count of criminal possession of a weapon in the third degree.[1] As proof of the critical element of the offense, the State sought to introduce Quarles' response to Officer Kraft's question as well as the revolver found behind the cartons. The Criminal Term of the Supreme Court of the State of New York ordered both Quarles' statement and the gun suppressed. The suppression order was affirmed first by the Appellate Division, 85 A.D. 2d 936, 447 N. Y. S. 2d 84 (1981), and again by the New York Court of Appeals, 58 N.Y. 2d 664, 444 N.E.2d 984 (1982) (mem.). The majority's entire analysis rests on the factual assumption that the public was at risk during Quarles' interrogation. This assumption is completely in conflict with the facts as found by New York's highest court. Before the interrogation began, Quarles had been "reduced to a condition of physical powerlessness." Id., at 667, 444 N.E.2d at 986. Contrary to the majority's speculations, ante, at 657, Quarles was not believed to have, nor did he in fact have, an accomplice to come to his rescue. When the questioning began, the arresting officers were sufficiently confident of their safety to put away their guns. As Officer Kraft acknowledged at the suppression hearing, "the situation was under control." App. 35a. Based on Officer Kraft's own testimony, the New York Court of Appeals found: "Nothing *676 suggests that any of the officers was by that time concerned for his own physical safety." 58 N.Y. 2d, at 666, 444 N.E.2d, at 985. The Court of Appeals also determined that there was no evidence that the interrogation was prompted by the arresting officers' concern for the public's safety. Ibid. The majority attempts to slip away from these unambiguous findings of New York's highest court by proposing that danger be measured by objective facts rather than the subjective intentions of arresting officers. Ante, at 655-656. Though clever, this ploy was anticipated by the New York Court of Appeals: "[T]here is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety . . . ." 58 N.Y. 2d, at 666, 444 N.E.2d, at 985. The New York court's conclusion that neither Quarles nor his missing gun posed a threat to the public's safety is amply supported by the evidence presented at the suppression hearing. Again contrary to the majority's intimations, ante, at 657, no customers or employees were wandering about the store in danger of coming across Quarles' discarded weapon. Although the supermarket was open to the public, Quarles' arrest took place during the middle of the night when the store was apparently deserted except for the clerks at the check-out counter. The police could easily have cordoned off the store and searched for the missing gun. Had they done so, they would have found the gun forthwith. The police were well aware that Quarles had discarded his weapon somewhere near the scene of the arrest. As the State acknowledged before the New York Court of Appeals: "After Officer Kraft had handcuffed and frisked the defendant in the supermarket, he knew with a high degree of certainty that the defendant's gun was within the immediate vicinity of the encounter. He undoubtedly would have searched for it in the carton a few feet away without the defendant having looked in that direction and saying that it was there." Brief for Appellant in No. 2512/80 (N. Y. Ct. App.), p. 11 (emphasis added). *677 Earlier this Term, four Members of the majority joined an opinion stating: "[Q]uestions of historical fact . . . must be determined, in the first instance, by state courts and deferred to, in the absence of `convincing evidence' to the contrary, by the federal courts." Rushen v. Spain, 464 U.S. 114, 120 (1983) (per curiam). In this case, there was convincing, indeed almost overwhelming, evidence to support the New York court's conclusion that Quarles' hidden weapon did not pose a risk either to the arresting officers or to the public. The majority ignores this evidence and sets aside the factual findings of the New York Court of Appeals. More cynical observers might well conclude that a state court's findings of fact "deserv[e] a `high measure of deference,' " ibid. (quoting Sumner v. Mata, 455 U.S. 591, 598 (1982)), only when deference works against the interests of a criminal defendant. II The majority's treatment of the legal issues presented in this case is no less troubling than its abuse of the facts. Before today's opinion, the Court had twice concluded that, under Miranda v. Arizona, 384 U.S. 436 (1966), police officers conducting custodial interrogations must advise suspects of their rights before any questions concerning the whereabouts of incriminating weapons can be asked. Rhode Island v. Innis, 446 U.S. 291, 298-302 (1980) (dicta); Orozco v. Texas, 394 U.S. 324 (1969) (holding).[2] Now the majority departs from these cases and rules that police may withhold *678 Miranda warnings whenever custodial interrogations concern matters of public safety.[3] The majority contends that the law, as it currently stands, places police officers in a dilemma whenever they interrogate a suspect who appears to know of some threat to the public's safety. Ante, at 657. If the police interrogate the suspect without advising him of his rights, the suspect may reveal information that the authorities can use to defuse the threat, but the suspect's statements will be inadmissible at trial. If, on the other hand, the police advise the suspect of his rights, the suspect may be deterred from responding to the police's questions, and the risk to the public may continue unabated. According to the majority, the police must now choose between establishing the suspect's guilt and safeguarding the public from danger. The majority proposes to eliminate this dilemma by creating an exception to Miranda v. Arizona for custodial interrogations concerning matters of public safety. Ante, at 658-659. Under the majority's exception, police would be permitted to interrogate suspects about such matters before the suspects have been advised of their constitutional rights. Without being "deterred" by the knowledge that they have a constitutional right not to respond, these suspects will be likely to answer the questions. Should the answers also be incriminating, the State would be free to introduce them as evidence in a criminal prosecution. Through this "narrow exception to the Miranda rule," ante, at 658, the majority proposes to protect the public's safety without jeopardizing the prosecution of criminal defendants. I find in this reasoning an unwise and unprincipled departure from our Fifth Amendment precedents. *679 Before today's opinion, the procedures established in Miranda v. Arizona had "the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible." Fare v. Michael C., 442 U.S. 707, 718 (1979); see Harryman v. Estelle, 616 F.2d 870, 873-874 (CA5 1980) (en banc), cert. denied, 449 U.S. 860 (1980). In a chimerical quest for public safety, the majority has abandoned the rule that brought 18 years of doctrinal tranquility to the field of custodial interrogations. As the majority candidly concedes, ante, at 658, a public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court's candor cannot mask what a serious loss the administration of justice has incurred. This case is illustrative of the chaos the "public-safety" exception will unleash. The circumstances of Quarles' arrest have never been in dispute. After the benefit of briefing and oral argument, the New York Court of Appeals, as previously noted, concluded that there was "no evidence in the record before us that there were exigent circumstances posing a risk to the public safety." 58 N.Y. 2d, at 666, 444 N.E.2d, at 985. Upon reviewing the same facts and hearing the same arguments, a majority of this Court has come to precisely the opposite conclusion: "So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety. . . ." Ante, at 657. If after plenary review two appellate courts so fundamentally differ over the threat to public safety presented by the simple and uncontested facts of this case, one must seriously question how law enforcement officers will respond to the majority's new rule in the confusion and haste of the real world. As THE CHIEF JUSTICE wrote in a similar context: "Few, if any, police officers are competent to make the kind *680 of evaluation seemingly contemplated . . . ." Rhode Island v. Innis, 446 U. S., at 304 (concurring in judgment). Not only will police officers have to decide whether the objective facts of an arrest justify an unconsented custodial interrogation, they will also have to remember to interrupt the interrogation and read the suspect his Miranda warnings once the focus of the inquiry shifts from protecting the public's safety to ascertaining the suspect's guilt. Disagreements of the scope of the "public-safety" exception and mistakes in its application are inevitable.[4] The end result, as JUSTICE O'CONNOR predicts, will be "a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence." Ante, at 663-664. In the meantime, the courts will have to dedicate themselves to spinning this new web of doctrines, and the country's law enforcement agencies will have to suffer patiently through the frustrations of another period of constitutional uncertainty. III Though unfortunate, the difficulty of administering the "public-safety" exception is not the most profound flaw in the majority's decision. The majority has lost sight of the fact that Miranda v. Arizona and our earlier custodial-interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations, *681 and invites the government to prosecute through the use of what necessarily are coerced statements. A The majority's error stems from a serious misunderstanding of Miranda v. Arizona and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of "enlarged protection for the Fifth Amendment privilege" were weighed against "the cost to society in terms of fewer convictions of guilty suspects." Ante, at 656-657. Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority now proposes to return to the scales of social utility to calculate whether Miranda's prophylactic rule remains cost-effective when threats to the public's safety are added to the balance. The results of the majority's "test" are announced with pseudo-scientific precision: "We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Ante, at 657. The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 384 U.S., at 504, 516-517 (Harlan, J., dissenting), the Miranda Court refused to allow such concerns to weaken the protections of the Constitution: "A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government *682 when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged." Id., at 479 (citation omitted). Whether society would be better off if the police warned suspects of their rights before beginning an interrogation or whether the advantages of giving such warnings would outweigh their costs did not inform the Miranda decision. On the contrary, the Miranda Court was concerned with the proscriptions of the Fifth Amendment, and, in particular, whether the Self-Incrimination Clause permits the government to prosecute individuals based on statements made in the course of custodial interrogations. Miranda v. Arizona was the culmination of a century-long inquiry into how this Court should deal with confessions made during custodial interrogations. Long before Miranda, the Court had recognized that the Federal Government was prohibited from introducing at criminal trials compelled confessions, including confessions compelled in the course of custodial interrogations. In 1924, Justice Brandeis was reciting settled law when he wrote: "[A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise." Wan v. United States, 266 U.S. 1, 14-15 (citing Bram v. United States, 168 U.S. 532 (1897)). Prosecutors in state courts were subject to similar constitutional restrictions. Even before Malloy v. Hogan, 378 U.S. 1 (1964), formally applied the Self-Incrimination Clause of the Fifth Amendment to the States, the Due Process Clause constrained the States from extorting confessions from criminal defendants. Chambers v. Florida, 309 U.S. 227 (1940); Brown v. Mississippi, 297 U.S. 278 (1936). Indeed, by the time of Malloy, the constraints of the Due Process Clause were almost as stringent as the requirements of the Fifth Amendment itself. 378 U.S., at 6-7; see, e. g., Haynes v. Washington, 373 U.S. 503 (1963). *683 When Miranda reached this Court, it was undisputed that both the States and the Federal Government were constitutionally prohibited from prosecuting defendants with confessions coerced during custodial interrogations.[5] As a theoretical matter, the law was clear. In practice, however, the courts found it exceedingly difficult to determine whether a given confession had been coerced. Difficulties of proof and subtleties of interrogation technique made it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled. Courts around the country were spending countless hours reviewing the facts of individual custodial interrogations. See Note, Developments in the Law — Confessions, 79 Harv. L. Rev. 935 (1966). Miranda dealt with these practical problems. After a detailed examination of police practices and a review of its previous decisions in the area, the Court in Miranda determined that custodial interrogations are inherently coercive. The Court therefore created a constitutional presumption that statements made during custodial interrogations are compelled in violation of the Fifth Amendment and are thus inadmissible in criminal prosecutions. As a result of the Court's decision in Miranda, a statement made during a custodial interrogation may be introduced as proof of a defendant's guilt only if the prosecution demonstrates that the defendant knowingly and intelligently waived his constitutional rights before making the statement.[6] The *684 now-familiar Miranda warnings offer law enforcement authorities a clear, easily administered device for ensuring that criminal suspects understand their constitutional rights well enough to waive them and to engage in consensual custodial interrogation. In fashioning its "public-safety" exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority's only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public's safety.[7] But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public-safety" exception and remain faithful to the logic of Miranda v. Arizona. B The majority's avoidance of the issue of coercion may not have been inadvertent. It would strain credulity to contend *685 that Officer Kraft's questioning of respondent Quarles was not coercive.[8] In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: "Where is the gun?" In the majority's phrase, the situation was "kaleidoscopic." Ante, at 656. Police and suspect were acting on instinct. Officer Kraft's abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. That the application of the "public-safety" exception in this case entailed coercion is no happenstance. The majority's ratio decidendi is that interrogating suspects about matters of public safety will be coercive. In its cost-benefit analysis, the Court's strongest arguments in favor of a "public-safety" exception to Miranda is that the police would be better able to protect the public's safety if they were not always required to give suspects their Miranda warnings. The crux of this argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would refuse to respond to police questioning were they advised of their constitutional rights. The "public-safety" exception is efficacious precisely because it permits police officers to coerce criminal defendants into making involuntary statements. Indeed, in the efficacy of the "public-safety" exception lies a fundamental and constitutional defect. Until today, this Court could truthfully state that the Fifth Amendment is given "broad scope" "[w]here there has been genuine compulsion *686 of testimony." Michigan v. Tucker, 417 U.S. 433, 440 (1974). Coerced confessions were simply inadmissible in criminal prosecutions. The "public-safety" exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and then permitting prosecutors to introduce those statements at trial. Though the majority's opinion is cloaked in the beguiling language of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating statements. I find this result in direct conflict with the Fifth Amendment's dictate that "[n]o person. . . shall be compelled in any criminal case to be a witness against himself." The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confession. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. Cf. Weatherford v. Bursey, 429 U.S. 545 (1977) (Sixth Amendment violated only if trial affected). To a limited degree, the majority is correct that there is a cost associated with the Fifth Amendment's ban on introducing coerced self-incriminating statements at trial. Without a "public-safety" exception, there would be occasions when a defendant incriminated himself by revealing a threat to the *687 public, and the State was unable to prosecute because the defendant retracted his statement after consulting with counsel and the police cannot find independent proof of guilt. Such occasion would not, however, be common. The prosecution does not always lose the use of incriminating information revealed in these situations. After consulting with counsel, a suspect may well volunteer to repeat his statement in hopes of gaining a favorable plea bargain or more lenient sentence. The majority thus overstates its case when it suggests that a police officer must necessarily choose between public safety and admissibility.[9] But however frequently or infrequently such cases arise their regularity is irrelevant. The Fifth Amendment prohibits compelled self-incrimination.[10] As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity and that the judiciary will avoid the taint of official lawlessness. See Murphy *688 v. Waterfront Comm'n, 378 U.S. 52, 55 (1964). The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties. IV Having determined that the Fifth Amendment renders inadmissible Quarles' response to Officer Kraft's questioning, I have no doubt that our precedents require that the gun discovered as a direct result of Quarles' statement must be presumed inadmissible as well. The gun was the direct product of a coercive custodial interrogation. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and Wong Sun v. United States, 371 U.S. 471 (1963), this Court held that the Government may not introduce incriminating evidence derived from an illegally obtained source. This Court recently explained the extent of the Wong Sun rule: "Although Silverthorne and Wong Sun involved violations of the Fourth Amendment, the `fruit of the poisonous tree' doctrine has not been limited to cases in which there has been a Fourth Amendment violation. The Court has applied the doctrine where the violations were of the Sixth Amendment, see United States v. Wade, 388 U.S. 218 (1967), as well as of the Fifth Amendment." Nix v. Williams, ante, at 442 (footnote omitted). Accord, United States v. Crews, 445 U.S. 463, 470 (1980).[11] When they ruled on the issue, the New York courts were *689 entirely correct in deciding that Quarles' gun was the tainted fruit of a nonconsensual interrogation and therefore was inadmissible under our precedents. However, since the New York Court of Appeals issued its opinion, the scope of the Wong Sun doctrine has changed. In Nix v. Williams, supra, this Court construed Wong Sun to permit the introduction into evidence of constitutionally tainted "fruits" that inevitably would have been discovered by the government. In its briefs before this Court and before the New York courts, petitioner has argued that the "inevitable-discovery" rule, if applied to this case, would permit the admission of Quarles' gun. Although I have not joined the Court's opinion in Nix, and although I am not wholly persuaded that New York law would permit the application of the "inevitable-discovery" rule to this case,[12]*690 I believe that the proper disposition of the matter is to vacate the order of the New York Court of Appeals to the extent that it suppressed Quarles' gun and remand the matter to the New York Court of Appeals for further consideration in light of Nix v. Williams. Accordingly, I would affirm the order of the Court of Appeals to the extent that it found Quarles' incriminating statement inadmissible under the Fifth Amendment, would vacate the order to the extent that it suppressed Quarles' gun, and would remand the matter for reconsideration in light of Nix v. Williams.

The police in this case arrested a man suspected of possessing a firearm in violation of New York law. Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation. Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The majority concludes that the State may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this Court's longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions. I dissent. I Shortly after midnight on September 11, Officer Kraft and three other policemen entered an A & P supermarket in search of respondent Quarles, a rape suspect who was reportedly armed. After a brief chase, the officers cornered Quarles in the back of the store. As the other officers trained their guns on the suspect, Officer Kraft frisked Quarles and discovered an empty shoulder holster. Officer Kraft then handcuffed Quarles, and the other officers holstered their guns. With Quarles' hands manacled behind *675 his back and the other officers standing close by, Officer Kraft questioned Quarles: "Where is the gun?" Gesturing towards a stack of liquid-soap cartons a few feet away, Quarles responded: "The gun is over there." Behind the cartons, the police found a loaded revolver. The State of New York subsequently failed to prosecute the alleged rape, and charged Quarles on a solitary count of criminal possession of a weapon in the third degree.[1] As proof of the critical element of the offense, the State sought to introduce Quarles' response to Officer Kraft's question as well as the revolver found behind the cartons. The Criminal Term of the Supreme Court of the State of New York ordered both Quarles' statement and the gun suppressed. The suppression order was affirmed first by the Appellate Division, and again by the New York Court of Appeals, The majority's entire analysis rests on the factual assumption that the public was at risk during Quarles' interrogation. This assumption is completely in conflict with the facts as found by New York's highest court. Before the interrogation began, Quarles had been "reduced to a condition of physical powerlessness." Contrary to the majority's speculations, ante, at 657, Quarles was not believed to have, nor did he in fact have, an accomplice to come to his rescue. When the questioning began, the arresting officers were sufficiently confident of their safety to put away their guns. As Officer Kraft acknowledged at the suppression hearing, "the situation was under control." App. 35a. Based on Officer Kraft's own testimony, the New York Court of Appeals found: "Nothing *676 suggests that any of the officers was by that time concerned for his own physical safety." The Court of Appeals also determined that there was no evidence that the interrogation was prompted by the arresting officers' concern for the public's safety. The majority attempts to slip away from these unambiguous findings of New York's highest court by proposing that danger be measured by objective facts rather than the subjective intentions of arresting officers. Ante, at 6-656. Though clever, this ploy was anticipated by the New York Court of Appeals: "[T]here is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety" The New York court's conclusion that neither Quarles nor his missing gun posed a threat to the public's safety is amply supported by the evidence presented at the suppression hearing. Again contrary to the majority's intimations, ante, at 657, no customers or employees were wandering about the store in danger of coming across Quarles' discarded weapon. Although the supermarket was open to the public, Quarles' arrest took place during the middle of the night when the store was apparently deserted except for the clerks at the check-out counter. The police could easily have cordoned off the store and searched for the missing gun. Had they done so, they would have found the gun forthwith. The police were well aware that Quarles had discarded his weapon somewhere near the scene of the arrest. As the State acknowledged before the New York Court of Appeals: "After Officer Kraft had handcuffed and frisked the defendant in the supermarket, he knew with a high degree of certainty that the defendant's gun was within the immediate vicinity of the encounter. He undoubtedly would have searched for it in the carton a few feet away without the defendant having looked in that direction and saying that it was there." Brief for Appellant in No. 2512/80 (N. Y. Ct. App.), p. 11 (emphasis added). *677 Earlier this Term, four Members of the majority joined an opinion stating: "[Q]uestions of historical fact must be determined, in the first instance, by state courts and deferred to, in the absence of `convincing evidence' to the contrary, by the federal courts." In this case, there was convincing, indeed almost overwhelming, evidence to support the New York court's conclusion that Quarles' hidden weapon did not pose a risk either to the arresting officers or to the public. The majority ignores this evidence and sets aside the factual findings of the New York Court of Appeals. More cynical observers might well conclude that a state court's findings of fact "deserv[e] a `high measure of deference,' " ), only when deference works against the interests of a criminal defendant. II The majority's treatment of the legal issues presented in this case is no less troubling than its abuse of the facts. Before today's opinion, the Court had twice concluded that, under police officers conducting custodial interrogations must advise suspects of their rights before any questions concerning the whereabouts of incriminating weapons can be asked. Rhode ;[2] Now the majority departs from these cases and rules that police may withhold *678 Miranda warnings whenever custodial interrogations concern matters of public safety.[3] The majority contends that the law, as it currently stands, places police officers in a dilemma whenever they interrogate a suspect who appears to know of some threat to the public's safety. Ante, at 657. If the police interrogate the suspect without advising him of his rights, the suspect may reveal information that the authorities can use to defuse the threat, but the suspect's statements will be inadmissible at trial. If, on the other hand, the police advise the suspect of his rights, the suspect may be deterred from responding to the police's questions, and the risk to the public may continue unabated. According to the majority, the police must now choose between establishing the suspect's guilt and safeguarding the public from danger. The majority proposes to eliminate this dilemma by creating an exception to for custodial interrogations concerning matters of public safety. Ante, at 658-659. Under the majority's exception, police would be permitted to interrogate suspects about such matters before the suspects have been advised of their constitutional rights. Without being "deterred" by the knowledge that they have a constitutional right not to respond, these suspects will be likely to answer the questions. Should the answers also be incriminating, the State would be free to introduce them as evidence in a criminal prosecution. Through this "narrow exception to the Miranda rule," ante, at 658, the majority proposes to protect the public's safety without jeopardizing the prosecution of criminal defendants. I find in this reasoning an unwise and unprincipled departure from our Fifth Amendment precedents. *679 Before today's opinion, the procedures established in had "the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible." ; see cert. denied, In a chimerical quest for public safety, the majority has abandoned the rule that brought 18 years of doctrinal tranquility to the field of custodial interrogations. As the majority candidly concedes, ante, at 658, a public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court's candor cannot mask what a serious loss the administration of justice has incurred. This case is illustrative of the chaos the "public-safety" exception will unleash. The circumstances of Quarles' arrest have never been in dispute. After the benefit of briefing and oral argument, the New York Court of Appeals, as previously noted, concluded that there was "no evidence in the record before us that there were exigent circumstances posing a risk to the public safety." Upon reviewing the same facts and hearing the same arguments, a majority of this Court has come to precisely the opposite conclusion: "So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety." Ante, at 657. If after plenary review two appellate courts so fundamentally differ over the threat to public safety presented by the simple and uncontested facts of this case, one must seriously question how law enforcement officers will respond to the majority's new rule in the confusion and haste of the real world. As THE CHIEF JUSTICE wrote in a similar context: "Few, if any, police officers are competent to make the kind *680 of evaluation seemingly contemplated" Rhode Not only will police officers have to decide whether the objective facts of an arrest justify an unconsented custodial interrogation, they will also have to remember to interrupt the interrogation and read the suspect his Miranda warnings once the focus of the inquiry shifts from protecting the public's safety to ascertaining the suspect's guilt. Disagreements of the scope of the "public-safety" exception and mistakes in its application are inevitable.[4] The end result, as JUSTICE O'CONNOR predicts, will be "a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence." Ante, at 663-664. In the meantime, the courts will have to dedicate themselves to spinning this new web of doctrines, and the country's law enforcement agencies will have to suffer patiently through the frustrations of another period of constitutional uncertainty. III Though unfortunate, the difficulty of administering the "public-safety" exception is not the most profound flaw in the majority's decision. The majority has lost sight of the fact that and our earlier custodial-interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations, *681 and invites the government to prosecute through the use of what necessarily are coerced statements. A The majority's error stems from a serious misunderstanding of and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of "enlarged protection for the Fifth Amendment privilege" were weighed against "the cost to society in terms of fewer convictions of guilty suspects." Ante, at 656-657. Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority now proposes to return to the scales of social utility to calculate whether Miranda's prophylactic rule remains cost-effective when threats to the public's safety are added to the balance. The results of the majority's "test" are announced with pseudo-scientific precision: "We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Ante, at 657. The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 516-517 the Miranda Court refused to allow such concerns to weaken the protections of the Constitution: "A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government *682 when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged." Whether society would be better off if the police warned suspects of their rights before beginning an interrogation or whether the advantages of giving such warnings would outweigh their costs did not inform the Miranda decision. On the contrary, the Miranda Court was concerned with the proscriptions of the Fifth Amendment, and, in particular, whether the Self-Incrimination Clause permits the government to prosecute individuals based on statements made in the course of custodial interrogations. was the culmination of a century-long inquiry into how this Court should deal with confessions made during custodial interrogations. Long before Miranda, the Court had recognized that the Federal Government was prohibited from introducing at criminal trials compelled confessions, including confessions compelled in the course of custodial interrogations. In 1924, Justice Brandeis was reciting settled law when he wrote: "[A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise." ). Prosecutors in state courts were subject to similar constitutional restrictions. Even before formally applied the Self-Incrimination Clause of the Fifth Amendment to the States, the Due Process Clause constrained the States from extorting confessions from criminal defendants. ; Indeed, by the time of Malloy, the constraints of the Due Process Clause were almost as stringent as the requirements of the Fifth Amendment -7; see, e. g., *683 When Miranda reached this Court, it was undisputed that both the States and the Federal Government were constitutionally prohibited from prosecuting defendants with confessions coerced during custodial interrogations.[5] As a theoretical matter, the law was clear. In practice, however, the courts found it exceedingly difficult to determine whether a given confession had been coerced. Difficulties of proof and subtleties of interrogation technique made it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled. Courts around the country were spending countless hours reviewing the facts of individual custodial interrogations. See Note, Developments in the Law — Confessions, Miranda dealt with these practical problems. After a detailed examination of police practices and a review of its previous decisions in the area, the Court in Miranda determined that custodial interrogations are inherently coercive. The Court therefore created a constitutional presumption that statements made during custodial interrogations are compelled in violation of the Fifth Amendment and are thus inadmissible in criminal prosecutions. As a result of the Court's decision in Miranda, a statement made during a custodial interrogation may be introduced as proof of a defendant's guilt only if the prosecution demonstrates that the defendant knowingly and intelligently waived his constitutional rights before making the statement.[6] The *684 now-familiar Miranda warnings offer law enforcement authorities a clear, easily administered device for ensuring that criminal suspects understand their constitutional rights well enough to waive them and to engage in consensual custodial interrogation. In fashioning its "public-safety" exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority's only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public's safety.[7] But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public-safety" exception and remain faithful to the logic of B The majority's avoidance of the issue of coercion may not have been inadvertent. It would strain credulity to contend *685 that Officer Kraft's questioning of respondent Quarles was not coercive.[8] In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: "Where is the gun?" In the majority's phrase, the situation was "kaleidoscopic." Ante, at 656. Police and suspect were acting on instinct. Officer Kraft's abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. That the application of the "public-safety" exception in this case entailed coercion is no happenstance. The majority's ratio decidendi is that interrogating suspects about matters of public safety will be coercive. In its cost-benefit analysis, the Court's strongest arguments in favor of a "public-safety" exception to Miranda is that the police would be better able to protect the public's safety if they were not always required to give suspects their Miranda warnings. The crux of this argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would refuse to respond to police questioning were they advised of their constitutional rights. The "public-safety" exception is efficacious precisely because it permits police officers to coerce criminal defendants into making involuntary statements. Indeed, in the efficacy of the "public-safety" exception lies a fundamental and constitutional defect. Until today, this Court could truthfully state that the Fifth Amendment is given "broad scope" "[w]here there has been genuine compulsion *686 of testimony." Coerced confessions were simply inadmissible in criminal prosecutions. The "public-safety" exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and then permitting prosecutors to introduce those statements at trial. Though the majority's opinion is cloaked in the beguiling language of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating statements. I find this result in direct conflict with the Fifth Amendment's dictate that "[n]o person. shall be compelled in any criminal case to be a witness against himself." The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confession. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. Cf. To a limited degree, the majority is correct that there is a cost associated with the Fifth Amendment's ban on introducing coerced self-incriminating statements at trial. Without a "public-safety" exception, there would be occasions when a defendant incriminated himself by revealing a threat to the *687 public, and the State was unable to prosecute because the defendant retracted his statement after consulting with counsel and the police cannot find independent proof of guilt. Such occasion would not, however, be common. The prosecution does not always lose the use of incriminating information revealed in these situations. After consulting with counsel, a suspect may well volunteer to repeat his statement in hopes of gaining a favorable plea bargain or more lenient sentence. The majority thus overstates its case when it suggests that a police officer must necessarily choose between public safety and admissibility.[9] But however frequently or infrequently such cases arise their regularity is irrelevant. The Fifth Amendment prohibits compelled self-incrimination.[10] As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity and that the judiciary will avoid the taint of official lawlessness. See Murphy The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties. IV Having determined that the Fifth Amendment renders inadmissible Quarles' response to Officer Kraft's questioning, I have no doubt that our precedents require that the gun discovered as a direct result of Quarles' statement must be presumed inadmissible as well. The gun was the direct product of a coercive custodial interrogation. In Silverthorne Lumber and Wong this Court held that the Government may not introduce incriminating evidence derived from an illegally obtained source. This Court recently explained the extent of the Wong Sun rule: "Although Silverthorne and Wong Sun involved violations of the Fourth Amendment, the `fruit of the poisonous tree' doctrine has not been limited to cases in which there has been a Fourth Amendment violation. The Court has applied the doctrine where the violations were of the Sixth Amendment, see United as well as of the Fifth Amendment." Nix v. ante, at 442 (footnote omitted). Accord, United[11] When they ruled on the issue, the New York courts were *689 entirely correct in deciding that Quarles' gun was the tainted fruit of a nonconsensual interrogation and therefore was inadmissible under our precedents. However, since the New York Court of Appeals issued its opinion, the scope of the Wong Sun doctrine has changed. In Nix v. this Court construed Wong Sun to permit the introduction into evidence of constitutionally tainted "fruits" that inevitably would have been discovered by the government. In its briefs before this Court and before the New York courts, petitioner has argued that the "inevitable-discovery" rule, if applied to this case, would permit the admission of Quarles' gun. Although I have not joined the Court's opinion in Nix, and although I am not wholly persuaded that New York law would permit the application of the "inevitable-discovery" rule to this case,[12]*690 I believe that the proper disposition of the matter is to vacate the order of the New York Court of Appeals to the extent that it suppressed Quarles' gun and remand the matter to the New York Court of Appeals for further consideration in light of Nix v. Accordingly, I would affirm the order of the Court of Appeals to the extent that it found Quarles' incriminating statement inadmissible under the Fifth Amendment, would vacate the order to the extent that it suppressed Quarles' gun, and would remand the matter for reconsideration in light of Nix v.

Justice Gorsuch

dissenting

WesternGeco LLC v. ION Geophysical Corp.

https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/

https://www.courtlistener.com/api/rest/v3/clusters/4510027/

2017-058

The Court holds that WesternGeco’s lost profits claim does not offend the judicially created presumption against the extraterritorial application of statutes. With that much, I agree. But I cannot subscribe to the Court’s fur- ther holding that the terms of the Patent Act permit awards of this kind. In my view the Act’s terms prohibit the lost profits sought in this case, whatever the general presumption against extraterritoriality applicable to all statutes might allow. So while the Federal Circuit may have relied in part on a mistaken extraterritoriality anal- ysis, I respectfully submit it reached the right result in concluding that the Patent Act forecloses WesternGeco’s claim for lost profits. The reason is straightforward. A U. S. patent provides a lawful monopoly over the manufacture, use, and sale of an invention within this country only. Meanwhile, Western- Geco seeks lost profits for uses of its invention beyond our borders. Specifically, the company complains that it lost lucrative foreign surveying contracts because ION’s cus- tomers used its invention overseas to steal that business. In measuring its damages, WesternGeco assumes it could have charged monopoly rents abroad premised on a U. S. patent that has no legal force there. Permitting damages 2 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH , J., , J. dissenting of this sort would effectively allow U. S. patent owners to use American courts to extend their monopolies to foreign markets. That, in turn, would invite other countries to use their own patent laws and courts to assert control over our economy. Nothing in the terms of the Patent Act supports that result and much militates against it. Start with the key statutory language. Under the Pa- tent Act, a patent owner enjoys “the right to exclude oth- ers from making, using, offering for sale, or selling the invention throughout the United States.” 35 U.S. C. §154(a)(1) (emphasis added). Emphasizing the point, the Act proceeds to explain that to “infring[e] the patent” someone must “without authority mak[e], us[e], offe[r] to sell, or sel[l] [the] patented invention, within the United States.” §271(a) (emphasis added). So making, using, or selling a patented invention inside the United States invites a claim for infringement. But those same acts outside the United States do not infringe a U. S. patent right. These principles work their way into the statutory measure of damages too. A patent owner who proves infringement is entitled to receive “damages adequate to compensate for the infringement.” §284 (emphasis added). Because an infringement must occur within the United States, that means a plaintiff can recover damages for the making, using, or selling of its invention within the United States, but not for the making, using, or selling of its invention elsewhere. What’s the upshot for our case? The jury was free to award WesternGeco royalties for the infringing products ION produced in this country; indeed, ION has not chal- lenged that award either here or before the Federal Cir- cuit. If ION’s infringement had cost WesternGeco sales in this country, it could have recovered for that harm too. At the same time, WesternGeco is not entitled to lost profits caused by the use of its invention outside the United Cite as: 585 U. S. ____ (2018) 3 Opinion G ORSUCHof GORSUCH , J., , J. dissenting States. That foreign conduct isn’t “infringement” and so under §284’s plain terms isn’t a proper basis for awarding “compensat[ion].” No doubt WesternGeco thinks it unfair that its invention was used to compete against it overseas. But that’s simply not the kind of harm for which our pa- tent laws provide compensation because a U. S. patent does not protect its owner from competition beyond our borders. This Court’s precedents confirm what the statutory text indicates. In Brown v. Duchesne, 19 How. 183 (1857), the Court considered whether the use of an American inven- tion on the high seas could support a damages claim under the U. S. patent laws. It said no. The Court explained that “the use of [an invention] outside of the jurisdiction of the United States is not an infringement of [the patent owner’s] rights,” and so the patent owner “has no claim to any compensation for” that foreign use. Id., at 195–196. A defendant must “compensate the patentee,” the Court continued, only to the extent that it has “com[e] in compe- tition with the [patent owner] where the [patent owner] was entitled to the exclusive use” of his invention— namely, within the United States. Id., at 196. What held true there must hold true here. ION must compensate WesternGeco for its intrusion on WesternGeco’s exclusive right to make, use, and sell its invention in the United States. But WesternGeco “has no claim to any compensa- tion for” noninfringing uses of its invention “outside of the jurisdiction of the United States.” Id., at 195–196.1 —————— 1 The Solicitor General disputes this reading of Duchesne. In his view, the Court indicated that, if a defendant “committed domestic infringement” by making the invention in the United States, the patent owner would have been entitled to recover for any subsequent use of the invention, including “ ‘the use of this improvement . . . on the high seas.’ ” Brief for United States as Amicus Curiae 17 (quoting Duchesne, 19 How., at 196). I am unpersuaded. The Court proceeded to explain that the “only use” of the invention that might require compensation 4 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH , J., , J. dissenting Other precedents offer similar teachings. In Birdsall v. Coolidge, 93 U.S. 64 (1876), the Court explained that damages are supposed to compensate a patent owner for “the unlawful acts of the defendant.” Ibid. To that end, the Court held, damages “shall be precisely commensurate with the injury suffered, neither more nor less.” Ibid. (emphasis added). It’s undisputed that the only injury WesternGeco suffered here came from ION’s infringing activity within the United States. A damages award that sweeps much more broadly to cover third parties’ nonin- fringing foreign uses can hardly be called “precisely com- mensurate” with that injury. This Court’s leading case on lost profit damages points the same way. In Yale Lock Mfg. Co. v. Sargent, 117 U.S. 536 (1886), the patent owner “availed himself of his exclu- sive right by keeping his patent a monopoly” and selling the invention himself. Id., at 552. As damages for a com- petitor’s infringement of the patent, the patent owner could recover “the difference between his pecuniary condi- tion after the infringement, and what his condition would have been if the infringement had not occurred.” Ibid. And that difference, the Court held, “is to be measured” by the additional profits the patent owner “would have real- ized from such sales if the infringement had not interfered with such monopoly.” Id., at 552–553. So, again, the Court tied the measure of damages to the degree of inter- ference with the patent owner’s exclusive right to make, use, and sell its invention. And, again, that much is miss- ing here because foreign uses of WesternGeco’s invention —————— was “in navigating the vessel into and out of [Boston] harbor, . . . while she was within the jurisdiction of the United States.” Id., at 196 (em- phasis added). With respect to uses outside the United States, the Court made clear that “compensation” was unavailable. Id., at 195– 196. Tellingly, WesternGeco does not adopt the Solicitor General’s reading of Duchesne—or even cite the case. Cite as: 585 U. S. ____ (2018) 5 Opinion G ORSUCHof GORSUCH , J., , J. dissenting could not have interfered with its U. S. patent monopoly.2 You might wonder whether §271(f )(2) calls for a special exception to these general principles. WesternGeco cer- tainly thinks it does. It’s true, too, that §271(f )(2) expressly refers to foreign conduct. The statute says that some- one who exports a specialized component, “intending that [it] will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” From this language, you might wonder whether §271(f )(2) seeks to protect patent owners from the foreign conduct that occurred in this case. It does not. Section 271(f )(2) modifies the circumstances when the law will treat an invention as having been made within the United States. It permits an infringement claim—and the damages that come with it—not only when someone produces the complete invention in this country for export, but also when someone exports key components of the invention for assembly aboard. A person who ships components from the United States intending they be assembled across the border is “liable” to the patent owner for royalties and lost profits the same as if he made the entire invention here. §271(f )(2). But none of this changes —————— 2 WesternGeco claims this Court permitted recovery based on foreign sales of an invention in Manufacturing Co. v. Cowing, 105 U.S. 253 (1882), but the Court never mentioned, much less decided, the issue. It merely observed, in passing, that the only markets for the invention at issue were “the oil-producing regions of Pennsylvania and Canada.” Id., at 256. The Court did not even say whether the Canada-bound products were actually sold in Canada (as opposed, say, to Canadian buyers in the United States). Meanwhile, in Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 235 U.S. 641 (1915), the Court rejected “recovery of either profits or damages” for products sold in Canada. Id., at 650. And while it distinguished Cowing on the ground that the defendants there had made the infringing articles in the United States, that hardly elevated Cowing’s failure to address the foreign sales issue into a reasoned decision on the question. 6 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH , J., , J. dissenting the bedrock rule that foreign uses of an invention (even an invention made in this country) do not infringe a U. S. patent. Nor could it. For after §271(f )(2)’s adoption, as before, patent rights exclude others from making, using, and selling an invention only “throughout the United States.” §154(a)(1). The history of the statute underscores the point. In Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972), the Court held that a defendant did not “make” an invention within the United States when it produced the invention’s components here but sold them to foreign buyers for final assembly abroad. Id., at 527–528. The Court recognized that, if the defendant had assembled the parts in this country and then sold them to the foreign buyers, it would have unlawfully made and sold the inven- tion within the United States. Id., at 527. But because what it made and sold in this country “fell short” of the complete invention, the Court held, the patent laws did not prohibit its conduct. Ibid. The dissent, by contrast, argued that for all practical purposes the invention “was made in the United States” since “everything was accom- plished in this country except putting the pieces together.” Id., at 533 (opinion of Blackmun, J.). Apparently Congress agreed, for it then added §271(f )(2) and made clear that someone who almost makes an invention in this country may be held liable as if he made the complete invention in this country. As the Solicitor General has explained, the new statute “effectively treat[ed] the domestic supply of the components of a patented invention for assembly abroad as tantamount to the domestic manufacture of the completed invention for export.” Brief for United States as Amicus Curiae 22 (emphasis added). Section 271(f )(2) thus expands what qualifies as making an invention in this country but does nothing to suggest that U. S. patents protect against—much less guarantee compensation for— uses abroad. Cite as: 585 U. S. ____ (2018) 7 Opinion G ORSUCHof GORSUCH , J., , J. dissenting Any suggestion that §271(f )(2) provides protection against foreign uses would also invite anomalous results. It would allow greater recovery when a defendant exports a component of an invention in violation of §271(f )(2) than when a defendant exports the entire invention in violation of §271(a). And it would threaten to “ ‘conver[t] a single act of supply from the United States into a springboard for liability.’ ” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 456 (2007). Here, for example, supplying a single infring- ing product from the United States would make ION responsible for any foreseeable harm its customers cause by using the product to compete against WesternGeco worldwide, even though WesternGeco’s U. S. patent doesn’t protect it from such competition. It’s some spring- board, too. The harm flowing from foreign uses in this case appears to outstrip wildly the harm inflicted by ION’s domestic production: the jury awarded $93.4 million in lost profits from uses in 10 foreign surveys but only $12.5 million in royalties for 2,500 U. S.-made products. Even more dramatic examples are not hard to imagine. Suppose a company develops a prototype microchip in a U. S. lab with the intention of manufacturing and selling the chip in a foreign country as part of a new smartphone. Suppose too that the chip infringes a U. S. patent and that the patent owner sells its own phone with its own chip overseas. Under the terms of the Patent Act, the developer commits an act of infringement by creating the proto- type here, but the additional chips it makes and sells outside the United States do not qualify as infringement. Under WesternGeco’s approach, however, the patent owner could recover any profits it lost to that foreign competition—or even three times as much, see §284— effectively giving the patent owner a monopoly over for- eign markets through its U. S. patent. That’s a very odd role for U. S. patent law to play in foreign markets, as “foreign law alone, not United States law,” is supposed to 8 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH , J., , J. dissenting govern the manufacture, use, and sale “of patented inven- tions in foreign countries.” Microsoft, supra, at 456. Worse yet, the tables easily could be turned. If our courts award compensation to U. S. patent owners for foreign uses where our patents don’t run, what happens when foreign courts return the favor? Suppose our hypo- thetical microchip developer infringed a foreign patent in the course of developing its new chip abroad, but then mass produced and sold the chip in the United States. A foreign court might reasonably hold the U. S. company liable for infringing the foreign patent in the foreign coun- try. But if it followed WesternGeco’s theory, the court might then award monopoly rent damages reflecting a right to control the market for the chip in this country— even though the foreign patent lacks any legal force here. It is doubtful Congress would accept that kind of foreign “control over our markets.” Deepsouth, supra, at 531. And principles of comity counsel against an interpretation of our patent laws that would interfere so dramatically with the rights of other nations to regulate their own econo- mies. While Congress may seek to extend U. S. patent rights beyond our borders if it chooses, cf. §105 (address- ing inventions made, used, and sold in outer space), noth- ing in the Patent Act fairly suggests that it has taken that step here. Today’s decision unfortunately forecloses further consid- eration of these points. Although its opinion focuses al- most entirely on why the presumption against extraterri- toriality applicable to all statutes does not forbid the damages sought here, the Court asserts in a few cursory sentences that the Patent Act by its terms allows recovery for foreign uses in cases like this. See ante, at 9. In doing so, the Court does not address the textual or doctrinal analysis offered here. It does not explain why “damages adequate to compensate for the infringement” should include damages for harm from noninfringing uses. §284 Cite as: 585 U. S. ____ (2018) 9 Opinion G ORSUCHof GORSUCH , J., , J. dissenting (emphasis added). It does not try to reconcile its holding with the teachings of Duchesne, Birdsall, and Yale Lock. And it ignores Microsoft’s admonition that §271(f )(2) should not be read to create springboards for liability based on foreign conduct. Instead, the Court relies on two cases that do not come close to supporting its broad hold- ing. In General Motors Corp. v. Devex Corp., 461 U.S. 648 (1983), the Court held that prejudgment interest should normally be awarded so as to place the patent owner “in as good a position as [it] would have been in had the in- fringer” not infringed. Id., at 655. Allowing recovery for for- eign uses, however, puts the patent owner in a better position than it was before by allowing it to demand mo- nopoly rents outside the United States as well as within. In Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964), meanwhile, the Court simply applied Yale Lock’s rule that a patent owner may recover “ ‘the difference between his pecuniary condition after the in- fringement, and what his condition would have been if the infringement had not occurred.’ ” Id., at 507 (quoting Yale Lock, 117 U. S., at 552). As we’ve seen, that test seeks to measure the interference with the patent owner’s lawful monopoly over U. S. markets alone. By failing to heed the plain text of the Patent Act and the lessons of our precedents, the Court ends up assuming that patent damages run (literally) to the ends of the earth. It allows U. S. patent owners to extend their patent monopolies far beyond anything Congress has authorized and shields them from foreign competition U. S. patents were never meant to reach. Because I cannot agree that the Patent Act requires that result, I respectfully dissent

The Court holds that WesternGeco’s lost profits claim does not offend the judicially created presumption against the extraterritorial application of statutes. With that much, I agree. But I cannot subscribe to the Court’s fur- ther holding that the terms of the Patent Act permit awards of this kind. In my view the Act’s terms prohibit the lost profits sought in this case, whatever the general presumption against extraterritoriality applicable to all statutes might allow. So while the Federal Circuit may have relied in part on a mistaken extraterritoriality anal- ysis, I respectfully submit it reached the right result in concluding that the Patent Act forecloses WesternGeco’s claim for lost profits. The reason is straightforward. A U. S. patent provides a lawful monopoly over the manufacture, use, and sale of an invention within this country only. Meanwhile, Western- Geco seeks lost profits for uses of its invention beyond our borders. Specifically, the company complains that it lost lucrative foreign surveying contracts because ION’s cus- tomers used its invention overseas to steal that business. In measuring its damages, WesternGeco assumes it could have charged monopoly rents abroad premised on a U. S. patent that has no legal force there. Permitting damages 2 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting of this sort would effectively allow U. S. patent owners to use American courts to extend their monopolies to foreign markets. That, in turn, would invite other countries to use their own patent laws and courts to assert control over our economy. Nothing in the terms of the Patent Act supports that result and much militates against it. Start with the key statutory language. Under the Pa- tent Act, a patent owner enjoys “the right to exclude oth- ers from making, using, offering for sale, or selling the invention throughout the United States.” 35 U.S. C. (emphasis added). Emphasizing the point, the Act proceeds to explain that to “infring[e] the patent” someone must “without authority mak[e], us[e], offe[r] to sell, or sel[l] [the] patented invention, within the United States.” (emphasis added). So making, using, or selling a patented invention inside the United States invites a claim for infringement. But those same acts outside the United States do not infringe a U. S. patent right. These principles work their way into the statutory measure of damages too. A patent owner who proves infringement is entitled to receive “damages adequate to compensate for the infringement.” (emphasis added). Because an infringement must occur within the United States, that means a plaintiff can recover damages for the making, using, or selling of its invention within the United States, but not for the making, using, or selling of its invention elsewhere. What’s the upshot for our case? The jury was free to award WesternGeco royalties for the infringing products ION produced in this country; indeed, ION has not chal- lenged that award either here or before the Federal Cir- cuit. If ION’s infringement had cost WesternGeco sales in this country, it could have recovered for that harm too. At the same time, WesternGeco is not entitled to lost profits caused by the use of its invention outside the United Cite as: 585 U. S. (2018) 3 Opinion G ORSUCHof GORSUCH J., J. dissenting States. That foreign conduct isn’t “infringement” and so under ’s plain terms isn’t a proper basis for awarding “compensat[ion].” No doubt WesternGeco thinks it unfair that its invention was used to compete against it overseas. But that’s simply not the kind of harm for which our pa- tent laws provide compensation because a U. S. patent does not protect its owner from competition beyond our borders. This Court’s precedents confirm what the statutory text indicates. In the Court considered whether the use of an American inven- tion on the high seas could support a damages claim under the U. S. patent laws. It said no. The Court explained that “the use of [an invention] outside of the jurisdiction of the United States is not an infringement of [the patent owner’s] rights,” and so the patent owner “has no claim to any compensation for” that foreign use. at 195–196. A defendant must “compensate the patentee,” the Court continued, only to the extent that it has “com[e] in compe- tition with the [patent owner] where the [patent owner] was entitled to the exclusive use” of his invention— namely, within the United States. What held true there must hold true here. ION must compensate WesternGeco for its intrusion on WesternGeco’s exclusive right to make, use, and sell its invention in the United States. But WesternGeco “has no claim to any compensa- tion for” noninfringing uses of its invention “outside of the jurisdiction of the United States.” at 195–196.1 —————— 1 The Solicitor General disputes this reading of Duchesne. In his view, the Court indicated that, if a defendant “committed domestic infringement” by making the invention in the United States, the patent owner would have been entitled to recover for any subsequent use of the invention, including “ ‘the use of this improvement on the high seas.’ ” Brief for United States as Amicus Curiae 17 (quoting Duchesne, 19 How., ). I am unpersuaded. The Court proceeded to explain that the “only use” of the invention that might require compensation 4 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting Other precedents offer similar teachings. In Birdsall v. Coolidge, the Court explained that damages are supposed to compensate a patent owner for “the unlawful acts of the defendant.” To that end, the Court held, damages “shall be precisely commensurate with the injury suffered, neither more nor less.” (emphasis added). It’s undisputed that the only injury WesternGeco suffered here came from ION’s infringing activity within the United States. A damages award that sweeps much more broadly to cover third parties’ nonin- fringing foreign uses can hardly be called “precisely com- mensurate” with that injury. This Court’s leading case on lost profit damages points the same way. In Yale Mfg. Co. v. Sargent, 117 U.S. 536 (1886), the patent owner “availed himself of his exclu- sive right by keeping his patent a monopoly” and selling the invention himself. As damages for a com- petitor’s infringement of the patent, the patent owner could recover “the difference between his pecuniary condi- tion after the infringement, and what his condition would have been if the infringement had not occurred.” And that difference, the Court held, “is to be measured” by the additional profits the patent owner “would have real- ized from such sales if the infringement had not interfered with such monopoly.” –553. So, again, the Court tied the measure of damages to the degree of inter- ference with the patent owner’s exclusive right to make, use, and sell its invention. And, again, that much is miss- ing here because foreign uses of WesternGeco’s invention —————— was “in navigating the vessel into and out of [Boston] harbor, while she was within the jurisdiction of the United States.” (em- phasis added). With respect to uses outside the United States, the Court made clear that “compensation” was unavailable. at 195– 196. Tellingly, WesternGeco does not adopt the Solicitor General’s reading of Duchesne—or even cite the case. Cite as: 585 U. S. (2018) 5 Opinion G ORSUCHof GORSUCH J., J. dissenting could not have interfered with its U. S. patent monopoly.2 You might wonder whether )(2) calls for a special exception to these general principles. WesternGeco cer- tainly thinks it does. It’s true, too, that )(2) expressly refers to foreign conduct. The statute says that some- one who exports a specialized component, “intending that [it] will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” From this language, you might wonder whether )(2) seeks to protect patent owners from the foreign conduct that occurred in this case. It does not. Section 271(f )(2) modifies the circumstances when the law will treat an invention as having been made within the United States. It permits an infringement claim—and the damages that come with it—not only when someone produces the complete invention in this country for export, but also when someone exports key components of the invention for assembly aboard. A person who ships components from the United States intending they be assembled across the border is “liable” to the patent owner for royalties and lost profits the same as if he made the entire invention here. )(2). But none of this changes —————— 2 WesternGeco claims this Court permitted recovery based on foreign sales of an invention in Manufacturing (1882), but the Court never mentioned, much less decided, the issue. It merely observed, in passing, that the only markets for the invention at issue were “the oil-producing regions of Pennsylvania and Canada.” The Court did not even say whether the Canada-bound products were actually sold in Canada (as opposed, say, to Canadian buyers in the United States). Meanwhile, in Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., the Court rejected “recovery of either profits or damages” for products sold in Canada. at 650. And while it distinguished Cowing on the ground that the defendants there had made the infringing articles in the United States, that hardly elevated Cowing’s failure to address the foreign sales issue into a reasoned decision on the question. 6 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting the bedrock rule that foreign uses of an invention (even an invention made in this country) do not infringe a U. S. patent. Nor could it. For after )(2)’s adoption, as before, patent rights exclude others from making, using, and selling an invention only “throughout the United States.” The history of the statute underscores the point. In Packing (1972), the Court held that a defendant did not “make” an invention within the United States when it produced the invention’s components here but sold them to foreign buyers for final assembly abroad. –528. The Court recognized that, if the defendant had assembled the parts in this country and then sold them to the foreign buyers, it would have unlawfully made and sold the inven- tion within the United States. But because what it made and sold in this country “fell short” of the complete invention, the Court held, the patent laws did not prohibit its conduct. The dissent, by contrast, argued that for all practical purposes the invention “was made in the United States” since “everything was accom- plished in this country except putting the pieces together.” Apparently Congress agreed, for it then added )(2) and made clear that someone who almost makes an invention in this country may be held liable as if he made the complete invention in this country. As the Solicitor General has explained, the new statute “effectively treat[ed] the domestic supply of the components of a patented invention for assembly abroad as tantamount to the domestic manufacture of the completed invention for export.” Brief for United States as Amicus Curiae 22 (emphasis added). Section 271(f )(2) thus expands what qualifies as making an invention in this country but does nothing to suggest that U. S. patents protect against—much less guarantee compensation for— uses abroad. Cite as: 585 U. S. (2018) 7 Opinion G ORSUCHof GORSUCH J., J. dissenting Any suggestion that )(2) provides protection against foreign uses would also invite anomalous results. It would allow greater recovery when a defendant exports a component of an invention in violation of )(2) than when a defendant exports the entire invention in violation of And it would threaten to “ ‘conver[t] a single act of supply from the United States into a springboard for liability.’ ” 456 (2007). Here, for example, supplying a single infring- ing product from the United States would make ION responsible for any foreseeable harm its customers cause by using the product to compete against WesternGeco worldwide, even though WesternGeco’s U. S. patent doesn’t protect it from such competition. It’s some spring- board, too. The harm flowing from foreign uses in this case appears to outstrip wildly the harm inflicted by ION’s domestic production: the jury awarded $93.4 million in lost profits from uses in 10 foreign surveys but only $12.5 million in royalties for 2,500 U. S.-made products. Even more dramatic examples are not hard to imagine. Suppose a company develops a prototype microchip in a U. S. lab with the intention of manufacturing and selling the chip in a foreign country as part of a new smartphone. Suppose too that the chip infringes a U. S. patent and that the patent owner sells its own phone with its own chip overseas. Under the terms of the Patent Act, the developer commits an act of infringement by creating the proto- type here, but the additional chips it makes and sells outside the United States do not qualify as infringement. Under WesternGeco’s approach, however, the patent owner could recover any profits it lost to that foreign competition—or even three times as much, see — effectively giving the patent owner a monopoly over for- eign markets through its U. S. patent. That’s a very odd role for U. S. patent law to play in foreign markets, as “foreign law alone, not United States law,” is supposed to 8 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting govern the manufacture, use, and sale “of patented inven- tions in foreign countries.” Worse yet, the tables easily could be turned. If our courts award compensation to U. S. patent owners for foreign uses where our patents don’t run, what happens when foreign courts return the favor? Suppose our hypo- thetical microchip developer infringed a foreign patent in the course of developing its new chip abroad, but then mass produced and sold the chip in the United States. A foreign court might reasonably hold the U. S. company liable for infringing the foreign patent in the foreign coun- try. But if it followed WesternGeco’s theory, the court might then award monopoly rent damages reflecting a right to control the market for the chip in this country— even though the foreign patent lacks any legal force here. It is doubtful Congress would accept that kind of foreign “control over our markets.” And principles of comity counsel against an interpretation of our patent laws that would interfere so dramatically with the rights of other nations to regulate their own econo- mies. While Congress may seek to extend U. S. patent rights beyond our borders if it chooses, cf. (address- ing inventions made, used, and sold in outer space), noth- ing in the Patent Act fairly suggests that it has taken that step here. Today’s decision unfortunately forecloses further consid- eration of these points. Although its opinion focuses al- most entirely on why the presumption against extraterri- toriality applicable to all statutes does not forbid the damages sought here, the Court asserts in a few cursory sentences that the Patent Act by its terms allows recovery for foreign uses in cases like this. See ante, at 9. In doing so, the Court does not address the textual or doctrinal analysis offered here. It does not explain why “damages adequate to compensate for the infringement” should include damages for harm from noninfringing uses. Cite as: 585 U. S. (2018) 9 Opinion G ORSUCHof GORSUCH J., J. dissenting (emphasis added). It does not try to reconcile its holding with the teachings of Duchesne, Birdsall, and Yale And it ignores ’s admonition that )(2) should not be read to create springboards for liability based on foreign conduct. Instead, the Court relies on two cases that do not come close to supporting its broad hold- ing. In General Motors (1983), the Court held that prejudgment interest should normally be awarded so as to place the patent owner “in as good a position as [it] would have been in had the in- fringer” not infringed. Allowing recovery for for- eign uses, however, puts the patent owner in a better position than it was before by allowing it to demand mo- nopoly rents outside the United States as well as within. In Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964), meanwhile, the Court simply applied Yale ’s rule that a patent owner may recover “ ‘the difference between his pecuniary condition after the in- fringement, and what his condition would have been if the infringement had not occurred.’ ” (quoting Yale 117 U. S., ). As we’ve seen, that test seeks to measure the interference with the patent owner’s lawful monopoly over U. S. markets alone. By failing to heed the plain text of the Patent Act and the lessons of our precedents, the Court ends up assuming that patent damages run (literally) to the ends of the earth. It allows U. S. patent owners to extend their patent monopolies far beyond anything Congress has authorized and shields them from foreign competition U. S. patents were never meant to reach. Because I cannot agree that the Patent Act requires that result, I respectfully dissent

Justice Kagan

majority

Judulang v. Holder

https://www.courtlistener.com/opinion/618680/judulang-v-holder/

https://www.courtlistener.com/api/rest/v3/clusters/618680/

2011-013

This case concerns the Board of Immigration Appeals’ (BIA or Board) policy for deciding when resident aliens may apply to the Attorney General for relief from deporta- tion under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious. The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a rea- soned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it. I A Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 1996, these two kinds of action occurred in different procedural settings, with an alien seeking entry (whether for the first time or upon return from a trip abroad) placed in an “exclusion 2 JUDULANG v. HOLDER Opinion of the Court proceeding” and an alien already here channeled to a “deportation proceeding.” See Landon v. Plasencia, 459 U.S. 21, 25–26 (1982) (comparing the two). Since that time, the Government has used a unified procedure, known as a “removal proceeding,” for exclusions and de- portations alike. See 8 U.S. C. §§1229, 1229a. But the statutory bases for excluding and deporting aliens have always varied. Now, as before, the immigration laws provide two separate lists of substantive grounds, princi- pally involving criminal offenses, for these two actions. One list specifies what kinds of crime render an alien excludable (or in the term the statute now uses, “inadmis- sible”), see §1182(a) (2006 ed., Supp. IV), while another— sometimes overlapping and sometimes divergent—list specifies what kinds of crime render an alien deportable from the country, see §1227(a). An additional, historic difference between exclusion and deportation cases involved the ability of the Attorney General to grant an alien discretionary relief. Until re- pealed in 1996, §212(c) of the Immigration and Nationality Act, 66 Stat. 187, 8 U.S. C. §1182(c) (1994 ed.), authorized the Attorney General to admit certain excludable aliens. See also §136(p) (1926 ed.) (predecessor provision to §212(c)). The Attorney General could order this relief when the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless the alien was excludable on one of two specified grounds. See §1182(c) (1994 ed.).1 But by its —————— 1 Therelevant part of §212(c), in the version of the exclusion statute all parties use, read as follows: “Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).” 8 U.S. C. §1182(c) (1994 ed.). Cite as: 565 U. S. ____ (2011) 3 Opinion of the Court terms, §212(c) did not apply when an alien was being deported. This discrepancy threatened to produce an odd result in a case called Matter of L-, 1 I. & N. Dec. 1 (1940), leading to the first-ever grant of discretionary relief in a deporta- tion case. L- was a permanent resident of the United States who had been convicted of larceny. Although L-’s crime made him inadmissible, he traveled abroad and then returned to the United States without any immigra- tion official’s preventing his entry. A few months later, the Government caught up with L- and initiated a depor- tation action based on his larceny conviction. Had the Government apprehended L- at the border a short while earlier, he would have been placed in an exclusion pro- ceeding where he could have applied for discretionary relief. But because L- was instead in a deportation pro- ceeding, no such relief was available. Responding to this apparent anomaly, Attorney General Robert Jackson (on referral of the case from the BIA) determined that L- could receive a waiver: L-, Jackson said, “should be permitted to make the same appeal to discretion that he could have made if denied admission” when returning from his recent trip. Id., at 6. In accord with this decision, the BIA adopted a policy of allowing aliens in deportation proceed- ings to apply for discretionary relief under §212(c) when- ever they had left and reentered the country after be- coming deportable. See Matter of S-, 6 I. & N. Dec. 392, 394–396 (1954). But this approach created another peculiar asymmetry: Deportable aliens who had traveled abroad and returned could receive §212(c) relief, while those who had never left —————— The parenthetical clause of this section prevented the Attorney Gen- eral from waiving exclusion for aliens who posed a threat to national security, §1182(a)(3), and aliens who engaged in international child abduction, §1182(a)(9)(C). 4 JUDULANG v. HOLDER Opinion of the Court could not. In Francis v. INS, 532 F.2d 268 (1976), the Court of Appeals for the Second Circuit concluded that this disparity violated equal protection. Id., at 273 (“[A]n alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time”). The BIA acquiesced in the Second Circuit’s decision, see Matter of Silva, 16 I. & N. Dec. 26 (1976), thus applying §212(c) in deporta- tion proceedings regardless of an alien’s travel history. All this might have become academic when Congress repealed §212(c) in 1996 and substituted a new discretion- ary remedy, known as “cancellation of removal,” which is available in a narrow range of circumstances to excludable and deportable aliens alike. See 8 U.S. C. §1229b. But in INS v. St. Cyr, 533 U.S. 289, 326 (2001), this Court con- cluded that the broader relief afforded by §212(c) must remain available, on the same terms as before, to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal. We reasoned that aliens had agreed to those pleas with the possibility of discretionary relief in mind and that eliminating this prospect would ill comport with “ ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” Id., at 323 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994)). Accordingly, §212(c) has had an afterlife for resident aliens with old criminal convictions. When the BIA is deciding whether to exclude such an alien, applying §212(c) is an easy matter. The Board first checks the statutory ground that the Department of Homeland Security (DHS) has identified as the basis for exclusion; the Board may note, for example, that DHS has charged the alien with previously committing a “crime involving moral turpitude,” see 8 U.S. C. §1182(a)(2)(A)(i)(I). Unless the charged ground is one of the pair falling outside §212(c)’s scope, see n. 1, supra, the Cite as: 565 U. S. ____ (2011) 5 Opinion of the Court alien is eligible for discretionary relief. The Board then determines whether to grant that relief based on such factors as “the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces.” St. Cyr, 533 U.S., at 296, n. 5. By contrast, when the BIA is deciding whether to deport an alien, applying §212(c) becomes a tricky business. Recall that §212(c) applies on its face only to exclusion decisions. So the question arises: How is the BIA to de- termine when an alien should receive §212(c) relief in the deportation context? One approach that the BIA formerly used considered how the alien would fare in an exclusion proceeding. To perform this analysis, the Board would first determine whether the criminal conviction making the alien deporta- ble fell within a statutory ground for exclusion. Almost all convictions did so, largely because the “crime involving moral turpitude” ground encompasses so many offenses.2 Assuming that threshold inquiry were met, the Board would mimic its approach in exclusion cases—first making sure the statutory ground at issue was not excepted from §212(c) and then conducting the multi-factor analysis. See Matter of Tanori, 15 I. & N. Dec. 566, 567–568 (1976); In re Manzueta, No. A93 022 672, 2003 WL 23269892 (BIA, Dec. 1, 2003). A second approach is the one challenged here; definitive- ly adopted in 2005 (after decades of occasional use), it often is called the “comparable-grounds” rule. See, e.g., De la Rosa v. U. S. Attorney General, 579 F.3d 1327, 1332 —————— 2 Firearms offenses are the most significant crimes falling outside the statutory grounds for exclusion. See Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 282, n. 4 (1990). 6 JUDULANG v. HOLDER Opinion of the Court (CA11 2009). That approach evaluates whether the ground for deportation charged in a case has a close ana- logue in the statute’s list of exclusion grounds. See In re Blake, 23 I. & N. Dec. 722, 728 (2005); In re Brieva-Perez, 23 I. & N. Dec. 766, 772–773 (2005).3 If the deportation ground consists of a set of crimes “substantially equiva- lent” to the set of offenses making up an exclusion ground, then the alien can seek §212(c) relief. Blake, 23 I. & N. Dec., at 728. But if the deportation ground charged covers significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver. Such a divergence makes §212(c) inapplicable even if the particular offense committed by the alien falls within an exclusion ground. Two contrasting examples from the BIA’s cases may help to illustrate this approach. Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has commit- ted an “aggravated felony” involving “illicit trafficking in a controlled substance.” 8 U.S. C. §§1101(a)(43)(B), 1227(a)(2)(A)(iii). Under the comparable-grounds rule, the immigration judge would look to see if that deportation ground covers substantially the same offenses as an exclu- sion ground. And according to the BIA in Matter of Meza, 20 I. & N. Dec. 257 (1991), the judge would find an ade- quate match—the exclusion ground applicable to aliens who have committed offenses “relating to a controlled substance,” 8 U.S. C. §§1182(a)(2)(A)(i)(II) and (a)(2)(C). Now consider an alien convicted of first-degree sexual abuse of a child, whom DHS wishes to deport on the ground that he has committed an “aggravated felony” —————— 3 Blake and Brieva-Perez clarified a 2004 regulation issued by the BIA stating that an alien is ineligible for §212(c) relief when deportable “on a ground which does not have a statutory counterpart in section 212.” 8 CFR §1212.3(f)(5) (2010). Cite as: 565 U. S. ____ (2011) 7 Opinion of the Court involving “sexual abuse of a minor.” §§1101(a)(43)(A), 1227(a)(2)(A)(iii). May this alien seek §212(c) relief ? According to the BIA, he may not do so—not because his crime is too serious (that is irrelevant to the analysis), but instead because no statutory ground of exclusion covers substantially the same offenses. To be sure, the alien’s own offense is a “crime involving moral turpitude,” 8 U.S. C. §1182(a)(2)(A)(i)(I), and so fits within an exclusion ground. Indeed, that will be true of most or all offenses included in this deportation category. See supra, at 5. But on the BIA’s view, the “moral turpitude” exclusion ground “addresses a distinctly different and much broader category of offenses than the aggravated felony sexual abuse of a minor charge.” Blake, 23 I. & N. Dec., at 728. And the much greater sweep of the exclusion ground prevents the alien from seeking discretionary relief from deportation.4 Those mathematically inclined might think of the comparable-grounds approach as employing Venn dia- grams. Within one circle are all the criminal offenses com- posing the particular ground of deportation charged. Within other circles are the offenses composing the various exclu- sion grounds. When, but only when, the “deportation circle” sufficiently corresponds to one of the “exclusion circles” may an alien apply for §212(c) relief. —————— 4 Careful readers may note that the example involving controlled substances offered in the last paragraph also involves an exclusion ground that sweeps more broadly than the deportation ground charged. The deportation ground requires “trafficking” in a controlled substance, whereas the exclusion ground includes all possession offenses as well. The BIA nonetheless held in Meza that the degree of overlap between the two grounds was sufficient to make the alien eligible for §212(c) relief. That holding reveals the broad discretion that the BIA currently exercises in deciding when two statutory grounds are comparable enough. 8 JUDULANG v. HOLDER Opinion of the Court B Petitioner Joel Judulang is a native of the Philippines who entered the United States in 1974 at the age of eight. Since that time, he has lived continuously in this country as a lawful permanent resident. In 1988, Judulang took part in a fight in which another person shot and killed someone. Judulang was charged as an accessory and eventually pleaded guilty to voluntary manslaughter. He received a 6-year suspended sentence and was released on probation immediately after his plea. In 2005, after Judulang pleaded guilty to another crimi- nal offense (this one involving theft), DHS commenced an action to deport him. DHS charged Judulang with having committed an “aggravated felony” involving “a crime of violence,” based on his old manslaughter conviction. 8 U.S. C. §§1101(a)(43)(F), 1227(a)(2)(A)(iii).5 The Immi- gration Judge ordered Judulang’s deportation, and the BIA affirmed. As part of its decision, the BIA considered whether Judulang could apply for §212(c) relief. It held that he could not do so because the “crime of violence” deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude. App. to Pet. for Cert. 8a. The Court of Appeals for the Ninth Circuit denied Judulang’s petition for review in reliance on circuit precedent upholding the BIA’s comparable-grounds approach. Judulang v. Gonzales, 249 Fed. Appx. 499, 502 (2007) (citing Abebe v. Gonzales, 493 F.3d 1092 (2007)). We granted certiorari, 563 U. S. ___ (2011), to resolve a circuit split on the approach’s validity.6 We now reverse. —————— 5 DHS also charged two other grounds for deportation, but the BIA did not rule on those grounds and they are not before us. 6 Compare Blake v. Carbone, 489 F.3d 88, 103 (CA2 2007) (rejecting the BIA’s approach and holding instead that “[i]f the offense that renders [an alien] deportable would render a similarly situated [alien] excludable, the deportable [alien] is eligible for a waiver of deporta- Cite as: 565 U. S. ____ (2011) 9 Opinion of the Court II This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U.S. C. §706(2)(A).7 The scope of our review under this standard is “narrow”; as we have often recog- nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking. When reviewing an agency action, we must assess, among other matters, “ ‘whether the decision was based on a consideration of the relevant factors and whether there —————— tion”), with Koussan v. Holder, 556 F.3d 403, 412–414 (CA6 2009) (upholding the comparable-grounds policy); Caroleo v. Gonzales, 476 F.3d 158, 162–163, 168 (CA3 2007) (same); Kim v. Gonzales, 468 F.3d 58, 62–63 (CA1 2006) (same). 7 The Government urges us instead to analyze this case under the second step of the test we announced in Chevron U. S. A. Inc. v. Natu- ral Resources Defense Council, Inc., 467 U.S. 837 (1984), to govern judicial review of an agency’s statutory interpretations. See Brief for Respondent 19. Were we to do so, our analysis would be the same, because under Chevron step two, we ask whether an agency interpreta- tion is “ ‘arbitrary or capricious in substance.’ ” Mayo Foundation for Medical Ed. and Research v. United States, 562 U. S. ___ , ___ (2011) (slip op., at 7) (quoting Household Credit Services, Inc. v. Pfennig, 541 U.S. 232, 242 (2004)). But we think the more apt analytic framework in this case is standard “arbitrary [or] capricious” review under the APA. The BIA’s comparable-grounds policy, as articulated in In re Blake, 23 I. & N. Dec. 722 (2005) and In re Brieva-Perez, 23 I. & N. Dec. 766 (2005), is not an interpretation of any statutory language—nor could it be, given that §212(c) does not mention deportation cases, see infra, at 16–17, and n. 11. 10 JUDULANG v. HOLDER Opinion of the Court has been a clear error of judgment.’ ” State Farm, 463 U.S., at 43 (quoting Bowman Transp., Inc. v. Arkansas- Best Freight System, Inc., 419 U.S. 281, 285 (1974)). That task involves examining the reasons for agency deci- sions—or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (noting “the requirement that an agency pro- vide reasoned explanation for its action”). The BIA has flunked that test here. By hinging a de- portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner. A The parties here spend much time disputing whether the BIA must make discretionary relief available to de- portable and excludable aliens on identical terms. As this case illustrates, the comparable-grounds approach does not do so. If Judulang were seeking entry to this country, he would be eligible for §212(c) relief; voluntary man- slaughter is “a crime involving moral turpitude,” and so his conviction falls within an exclusion ground. But Judu- lang cannot apply for relief from deportation because the “crime of violence” ground charged in his case does not match any exclusion ground (including the one for “turpi- tudinous” crimes). See infra, at 13. Judulang argues that this disparity is impermissible because any disparity between excludable and deportable aliens is impermissi- ble: If an alien may seek §212(c) relief in an exclusion case, he also must be able to seek such relief in a deporta- tion case. See Brief for Petitioner 47–51.8 But the Gov- —————— 8 Judulang also argues that the BIA is making an impermissible dis- tinction between two groups of deportable aliens—those who have recently left and returned to the country and those who have not. Cite as: 565 U. S. ____ (2011) 11 Opinion of the Court ernment notes that the immigration laws have always drawn distinctions between exclusion and deportation. See Brief for Respondent 51. And the Government presses a policy reason for making §212(c) relief more readily available in exclusion cases. Doing so, it argues, will provide an incentive for some resident aliens (i.e., those eligible for a waiver from exclusion, but not deportation) to report themselves to immigration officials, by applying for advance permission to exit and reenter the country. In contrast, applying §212(c) uniformly might lead all aliens to “try to evade immigration officials for as long as possi- ble,” because they could in any event “seek [discretionary] relief if caught.” Id., at 52. In the end, we think this dispute beside the point, and we do not resolve it. The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “ ‘relevant factors,’ ” State —————— According to Judulang, the BIA is treating the former as if they were seeking admission, while applying the “comparable grounds” approach only to the latter. See Reply Brief for Petitioner 16–18. That is the kind of distinction the Second Circuit held in Francis v. INS, 532 F.2d 268 (1976), violated equal protection. See supra, at 3–4. But the Government contends that it is drawing no such line—that it is apply- ing the comparable-grounds policy to all deportable aliens. Brief for Respondent 29. We think the available evidence tends to support the Government’s representation. See In re Meza-Castillo, No. A091 366 529, 2009 WL 455596 (BIA, Feb. 9, 2009) (applying comparable-grounds analysis to a deportable alien who had left and returned to the coun- try); In re Valenzuela-Morales, No. A40 443 512, 2008 WL 2079382 (BIA, Apr. 23, 2008) (same). But in light of our holding that the comparable-grounds approach is arbitrary and capricious, we need not resolve this dispute about the BIA’s practice. 12 JUDULANG v. HOLDER Opinion of the Court Farm, 463 U.S., at 43 (quoting Bowman Transp., 419 U.S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi- gration laws or the appropriate operation of the immigra- tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases. The problem with the comparable-grounds policy is that it does not impose such a reasonable limitation. Rather than considering factors that might be thought germane to the deportation decision, that policy hinges §212(c) eligi- bility on an irrelevant comparison between statutory provisions. Recall that the BIA asks whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground. But so what if it does? Does an alien charged with a particular deportation ground become more worthy of relief because that ground happens to match up with another? Or less worthy of relief because the ground does not? The comparison in no way changes the alien’s prior offense or his other attrib- utes and circumstances. So it is difficult to see why that comparison should matter. Each of these statutory grounds contains a slew of offenses. Whether each con- tains the same slew has nothing to do with whether a deportable alien whose prior conviction falls within both grounds merits the ability to seek a waiver.9 —————— 9 The case would be different if Congress had intended for §212(c) relief to depend on the interaction of exclusion grounds and deportation grounds. But the Government has presented us with no evidence to this effect, nor have we found any. See Blake, 489 F.3d, at 102 (Con- gress never contemplated, in drafting the immigration laws, “that its grounds of deportation would have any connection with the grounds of Cite as: 565 U. S. ____ (2011) 13 Opinion of the Court This case well illustrates the point. In commencing Judulang’s deportation proceeding, the Government charged him with an “aggravated felony” involving a “crime of violence” based on his prior manslaughter con- viction. See App. to Pet. for Cert. 11a–12a. That made him ineligible for §212(c) relief because the “crime of vio- lence” deportation ground does not sufficiently overlap with the most similar exclusion ground, for “crime[s] involving moral turpitude.” The problem, according to the BIA, is that the “crime of violence” ground includes a few offenses—simple assault, minor burglary, and unauthor- ized use of a vehicle—that the “moral turpitude” ground does not. See Brieva-Perez, 23 I. & N. Dec., at 772–773; Tr. of Oral Arg. 28–29, 40–41. But this statutory differ- ence in no way relates to Judulang—or to most other aliens charged with committing a “crime of violence.” Perhaps aliens like Judulang should be eligible for §212(c) relief, or perhaps they should not. But that determination is not sensibly made by establishing that simple assaults and minor burglaries fall outside a ground for exclusion. That fact is as extraneous to the merits of the case as a coin flip would be. It makes Judulang no less deserving of the opportunity to seek discretionary relief—just as its converse (the inclusion of simple assaults and burglaries in the “moral turpitude” exclusion ground) would make him no more so. Or consider a different headscratching oddity of the comparable-grounds approach—that it may deny §212(c) eligibility to aliens whose deportation ground fits entirely inside an exclusion ground. The BIA’s Blake decision, noted earlier, provides an example. See supra, at 6–7. The deportation ground charged was “aggravated felony” involving “sexual abuse of a minor”; the closest exclusion ground was, once again, a “crime [of] moral turpitude.” 23 —————— exclusion” in the application of §212(c)); see also infra, at 16–17. 14 JUDULANG v. HOLDER Opinion of the Court I. & N. Dec., at 727. Here, the BIA’s problem was not that the deportation ground covered too many offenses; all or virtually all the crimes within that ground also are crimes of moral turpitude. Rather, the BIA objected that the deportation ground covered too few crimes—or put oppo- sitely, that “the moral turpitude ground of exclusion ad- dresses a . . . much broader category of offenses.” Id., at 728. But providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group.10 (The better argument would surely be the reverse—that giving relief in the one context supports doing so in the other.) Again, we do not say today that the BIA must give all deportable aliens meeting §212(c)’s requirements the chance to apply for a waiver. See supra, at 11–12. The point is instead that the BIA cannot make that opportunity turn on the meaning- less matching of statutory grounds. And underneath this layer of arbitrariness lies yet another, because the outcome of the Board’s comparable- grounds analysis itself may rest on the happenstance of an immigration official’s charging decision. This problem arises because an alien’s prior conviction may fall within a number of deportation grounds, only one of which corre- sponds to an exclusion ground. Consider, for example, an alien who entered the country in 1984 and commit- ted voluntary manslaughter in 1988. That person could be charged (as Judulang was) with an “aggravated fel- ony” involving a “crime of violence,” see 8 U.S. C. §§1101(a)(43)(F), 1227(a)(2)(A)(iii). If so, the alien could not seek a waiver because of the absence of a comparable exclusion ground. But the alien also could be charged —————— 10 Perhaps that is why the BIA declined to apply similar reasoning in Meza—a case also involving an exclusion ground that sweeps more broadly than a deportation ground (although not to the same extent as in Blake). See supra, at 6. Cite as: 565 U. S. ____ (2011) 15 Opinion of the Court with “a crime involving moral turpitude committed within five years . . . after the date of admission,” see §1227(a)(2)(A)(i)(I). And if that were the deportation charge, the alien could apply for relief, because the ground corresponds to the “moral turpitude” ground used in ex- clusion cases. See In re Salmon, 16 I. & N. Dec. 734 (1978). So everything hangs on the charge. And the Government has provided no reason to think that immi- gration officials must adhere to any set scheme in deciding what charges to bring, or that those officials are exercising their charging discretion with §212(c) in mind. See Tr. of Oral Arg. 34–36. So at base everything hangs on the fortuity of an individual official’s decision. An alien ap- pearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country. In a foundational deportation case, this Court recog- nized the high stakes for an alien who has long resided in this country, and reversed an agency decision that would “make his right to remain here dependent on circumstan- ces so fortuitous and capricious.” Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947). We think the policy before us similarly flawed. The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distin- guishes among aliens—decides who should be eligible for discretionary relief and who should not—solely by compar- ing the metes and bounds of diverse statutory categories into which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws. Judge Learned Hand wrote in another early immigration case that deportation decisions cannot be made a “sport of chance.” See Di Pasquale v. Karnuth, 158 F.2d 878, 879 (CA2 1947) (quoted in Rosenberg v. Fleuti, 374 U.S. 449, 455 (1963)). That is what the comparable-grounds rule 16 JUDULANG v. HOLDER Opinion of the Court brings about, and that is what the APA’s “arbitrary and capricious” standard is designed to thwart. B The Government makes three arguments in defense of the comparable-grounds rule—the first based on statutory text, the next on history, the last on cost. We find none of them persuasive. 1 The Government initially contends that the comparable- grounds approach is more faithful to “the statute’s lan- guage,” Brief for Respondent 21—or otherwise said, that “lifting that limit ‘would take immigration practice even further from the statutory text,’ ” id., at 22 (quoting Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 287 (1990)). In the Government’s view, §212(c) is “phrased in terms of waiving statutorily specified grounds of exclusion”; that phrasing, says the Government, counsels a comparative analysis of grounds when applying §212(c) in the deporta- tion context. Brief for Respondent 21; see Tr. of Oral Arg. 34 (“[T]he reason [the comparable-grounds approach] makes sense is because the statute only provides for relief from grounds of . . . exclusion”). The first difficulty with this argument is that it is based on an inaccurate description of the statute. Section 212(c) instructs that certain resident aliens “may be admitted in the discretion of the Attorney General” notwithstanding any of “the provisions of subsection (a) . . . (other than paragraphs (3) and (9)(C)).” 8 U.S. C. §1182(c) (1994 ed.). Subsection (a) contains the full list of exclusion grounds; paragraphs (3) and (9)(C) (which deal with national secu- rity and international child abduction) are two among these. What §212(c) actually says, then, is that the Attor- ney General may admit any excludable alien, except if the alien is charged with two specified grounds. And that Cite as: 565 U. S. ____ (2011) 17 Opinion of the Court means that once the Attorney General determines that the alien is not being excluded for those two reasons, the ground of exclusion no longer matters. At that point, the alien is eligible for relief, and the thing the Attorney Gen- eral waives is not a particular exclusion ground, but the simple denial of entry. So the premise of the Govern- ment’s argument is wrong. And if the premise, so too the conclusion—that is, because §212(c)’s text is not “phrased in terms of waiving statutorily specified grounds of exclu- sion,” Brief for Respondent 21, it cannot counsel a search for corresponding grounds of deportation. More fundamentally, the comparable-grounds approach would not follow from §212(c) even were the Government right about the section’s phrasing. That is because §212(c) simply has nothing to do with deportation: The provision was not meant to interact with the statutory grounds for deportation, any more than those grounds were designed to interact with the provision. Rather, §212(c) refers solely to exclusion decisions; its extension to deportation cases arose from the agency’s extra-textual view that some similar relief should be available in that context to avoid unreasonable distinctions. Cf., e.g., Matter of L-, 1 I. & N. Dec., at 5; see also supra, at 3–4.11 Accordingly, the text of §212(c), whether or not phrased in terms of “waiving grounds of exclusion,” cannot support the BIA’s use of the —————— 11 Congress amended §212(c), just five months before repealing it, to include a first-time reference to deportation cases. That amendment prohibited the Attorney General from granting discretionary relief to aliens deportable on several specified grounds. See Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1277 (effective Apr. 24, 1996). The change does not affect our analysis, nor does the Govern- ment argue it should. As the Government notes, the amendment “did not speak to the viability of the Board’s” comparable-grounds rule, but instead made categorically ineligible for §212(c) relief “those deportable by reason of certain crimes.” Brief for Respondent 20. Presumably, Congress thought those crimes particularly incompatible with an alien’s continued residence in this country. 18 JUDULANG v. HOLDER Opinion of the Court comparable-grounds rule—or, for that matter, any other method for extending discretionary relief to deportation cases. We well understand the difficulties of operating in such a text-free zone; indeed, we appreciate the Govern- ment’s yearning for a textual anchor. But §212(c), no matter how many times read or parsed, does not provide one. 2 In disputing Judulang’s contentions, the Government also emphasizes the comparable-grounds rule’s vintage. See Brief for Respondent 22–23, 30–43. As an initial matter, we think this a slender reed to support a signifi- cant government policy. Arbitrary agency action becomes no less so by simple dint of repetition. (To use a prior analogy, flipping coins to determine §212(c) eligibility would remain as arbitrary on the thousandth try as on the first.) And longstanding capriciousness receives no special exemption from the APA. In any event, we cannot detect the consistency that the BIA claims has marked its ap- proach to this issue. To the contrary, the BIA has repeat- edly vacillated in its method for applying §212(c) to de- portable aliens. Prior to 1984, the BIA endorsed a variety of approaches. In Matter of T-, 5 I. & N. Dec. 389, 390 (1953), for example, the BIA held that an alien was not eligible for §212(c) relief because her “ground of deportation” did not appear in the exclusion statute. That decision anticipated the comparable-grounds approach that the BIA today uses. But in Tanori, the BIA pronounced that a deportable alien could apply for a waiver because “the same facts”—in that case, a marijuana conviction—would have allowed him to seek §212(c) relief in an exclusion proceeding. 15 I. & N. Dec., at 568. That approach is more nearly similar to the one Judulang urges here. And then, in Matter of Grana- dos, 16 I. & N. Dec. 726, 728 (1979), the BIA tried to have Cite as: 565 U. S. ____ (2011) 19 Opinion of the Court it both ways: It denied §212(c) eligibility both because the deportation ground charged did not correspond to, and because the alien’s prior conviction did not fall within, a waivable ground of exclusion. In short, the BIA’s cases were all over the map. The Government insists that the BIA imposed order in Matter of Wadud, 19 I. & N. Dec. 182, 185–186 (1984), when it held that a deportable alien could not seek §212(c) relief unless the deportation ground charged had an “anal- ogous ground of inadmissibility.” See Brief for Respondent 40–41. But the BIA’s settlement, if any, was fleeting. Just seven years later, the BIA adopted a new policy entirely, extending §212(c) eligibility to “aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 212(c).” Hernandez- Casillas, 20 I. & N. Dec., at 266. That new rule turned the comparable-grounds approach inside-out, allowing aliens to seek §212(c) relief in deportation cases except when the ground charged corresponded to an exclusion ground that could not be waived. To be sure, the Attorney General (on referral of the case from the BIA), disavowed this position in favor of the more standard version of the comparable- grounds rule. Id., at 287. But even while doing so, the Attorney General stated that “an alien subject to deporta- tion must have the same opportunity to seek discretionary relief as an alien . . . subject to exclusion.” Ibid. That assertion is exactly the one Judulang makes in this case; it is consonant not with the comparable-grounds rule the BIA here defends, but instead with an inquiry into wheth- er an alien’s prior conviction falls within an exclusion ground. Given these mixed signals, it is perhaps not surprising that the BIA continued to alternate between approaches in the years that followed. Immediately after the Attorney General’s opinion in Hernandez-Casillas, the BIA en- 20 JUDULANG v. HOLDER Opinion of the Court dorsed the comparable-grounds approach on several occa- sions. See Meza, 20 I. & N. Dec., at 259; Matter of Monte- negro, 20 I. & N. Dec. 603, 604–605 (1992); Matter of Gabryelsky, 20 I. & N. Dec. 750, 753–754 (1993); In re Esposito, 21 I. & N. Dec. 1, 6–7 (1995); In re Jimenez- Santillano, 21 I. & N. Dec. 567, 571–572 (1996). But just a few years later, the BIA issued a series of unpublished opinions that asked only whether a deportable alien’s prior conviction fell within an exclusion ground. See, e.g., In re Manzueta, No. A93 022 672, 2003 WL 23269892 (Dec. 1, 2003). Not until the BIA’s decisions in Blake and Brieva-Perez did the pendulum stop swinging. That histo- ry hardly supports the Government’s view of a consistent agency practice.12 3 The Government finally argues that the comparable- grounds rule saves time and money. The Government claims that comparing deportation grounds to exclusion grounds can be accomplished in just a few “precedential decision[s],” which then can govern broad swaths of cases. See Brief for Respondent 46. By contrast, the Government argues, Judulang’s approach would force it to determine whether each and every crime of conviction falls within an exclusion ground. Further, the Government contends that Judulang’s approach would grant eligibility to a greater —————— 12 Because we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s argument that Blake and Brieva-Perez were imper- missibly retroactive. To succeed on that theory, Judulang would have to show, at a minimum, that in entering his guilty plea, he had reason- ably relied on a legal rule from which Blake and Brieva-Perez departed. See Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994) (stating that retroactivity analysis focuses on “considerations of fair notice, reasonable reliance, and settled expectations”). The instability of the BIA’s prior practice prevents Judulang from making this showing: The BIA sometimes recognized aliens in Judulang’s position as eligible for §212(c) relief, but sometimes did not. Cite as: 565 U. S. ____ (2011) 21 Opinion of the Court number of deportable aliens, which in turn would force the Government to make additional individualized assess- ments of whether to actually grant relief. Id., at 47. Once again, the Government’s rationale comes up short. Cost is an important factor for agencies to consider in many contexts. But cheapness alone cannot save an arbi- trary agency policy. (If it could, flipping coins would be a valid way to determine an alien’s eligibility for a waiver.) And in any event, we suspect the Government exaggerates the cost savings associated with the comparable-grounds rule. Judulang’s proposed approach asks immigration officials only to do what they have done for years in exclu- sion cases; that means, for one thing, that officials can make use of substantial existing precedent governing whether a crime falls within a ground of exclusion. And Judulang’s proposal may not be the only alternative to the comparable-grounds rule. See supra, at 11–12. In reject- ing that rule, we do not preclude the BIA from trying to devise another, equally economical policy respecting eligi- bility for §212(c) relief, so long as it comports with every- thing held in both this decision and St. Cyr. III We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance—whether law- ful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protes- tations, it is not supported by text or practice or cost con- siderations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law. The judgment of the Ninth Circuit is hereby reversed, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered

This case concerns the Board of Immigration Appeals’ (BIA or Board) policy for deciding when resident aliens may apply to the Attorney General for relief from deporta- tion under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious. The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a rea- soned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it. I A Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 996, these two kinds of action occurred in different procedural settings, with an alien seeking entry (whether for the first time or upon return from a trip abroad) placed in an “exclusion 2 JUDULANG v. HOLDER Opinion of the Court proceeding” and an alien already here channeled to a “deportation proceeding.” See Landon v. Plasencia, 459 U.S. 2, 25–26 (982) (comparing the two). Since that time, the Government has used a unified procedure, known as a “removal proceeding,” for exclusions and de- portations alike. See 8 U.S. C. 229a. But the statutory bases for excluding and deporting aliens have always varied. Now, as before, the immigration laws provide two separate lists of substantive grounds, princi- pally involving criminal offenses, for these two actions. One list specifies what kinds of crime render an alien excludable (or in the term the statute now uses, “inadmis- sible”), see (2006 ed., Supp. IV), while another— sometimes overlapping and sometimes divergent—list specifies what kinds of crime render an alien deportable from the country, see An additional, historic difference between exclusion and deportation cases involved the ability of the Attorney General to grant an alien discretionary relief. Until re- pealed in 996, of the Immigration and Nationality Act, 8 U.S. C. (994 ed.), authorized the Attorney General to admit certain excludable aliens. See (926 ed.) (predecessor provision to ). The Attorney General could order this relief when the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless the alien was excludable on one of two specified grounds. See (994 ed.). But by its —————— Therelevant part of in the version of the exclusion statute all parties use, read as follows: “Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).” 8 U.S. C. (994 ed.). Cite as: 565 U. S. (20) 3 Opinion of the Court terms, did not apply when an alien was being deported. This discrepancy threatened to produce an odd result in a case called Matter of L-, leading to the first-ever grant of discretionary relief in a deporta- tion case. L- was a permanent resident of the United States who had been convicted of larceny. Although L-’s crime made him inadmissible, he traveled abroad and then returned to the United States without any immigra- tion official’s preventing his entry. A few months later, the Government caught up with L- and initiated a depor- tation action based on his larceny conviction. Had the Government apprehended L- at the border a short while earlier, he would have been placed in an exclusion pro- ceeding where he could have applied for discretionary relief. But because L- was instead in a deportation pro- ceeding, no such relief was available. Responding to this apparent anomaly, Attorney General Robert Jackson (on referral of the case from the BIA) determined that L- could receive a waiver: L-, Jackson said, “should be permitted to make the same appeal to discretion that he could have made if denied admission” when returning from his recent trip. In accord with this decision, the BIA adopted a policy of allowing aliens in deportation proceed- ings to apply for discretionary relief under when- ever they had left and reentered the country after be- coming deportable. See Matter of S-, 394–396 (954). But this approach created another peculiar asymmetry: Deportable aliens who had traveled abroad and returned could receive relief, while those who had never left —————— The parenthetical clause of this section prevented the Attorney Gen- eral from waiving exclusion for aliens who posed a threat to national security, (3), and aliens who engaged in international child abduction, (9)(C). 4 JUDULANG v. HOLDER Opinion of the Court could not. In the Court of Appeals for the Second Circuit concluded that this disparity violated equal protection. (“[A]n alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time”). The BIA acquiesced in the Second Circuit’s decision, see Matter of Silva, 6 I. & N. Dec. 26 thus applying in deporta- tion proceedings regardless of an alien’s travel history. All this might have become academic when Congress repealed in 996 and substituted a new discretion- ary remedy, known as “cancellation of removal,” which is available in a narrow range of circumstances to excludable and deportable aliens alike. See 8 U.S. C. But in this Court con- cluded that the broader relief afforded by must remain available, on the same terms as before, to an alien whose removal is based on a guilty plea entered before ’s repeal. We reasoned that aliens had agreed to those pleas with the possibility of discretionary relief in mind and that eliminating this prospect would ill comport with “ ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” ). Accordingly, has had an afterlife for resident aliens with old criminal convictions. When the BIA is deciding whether to exclude such an alien, applying is an easy matter. The Board first checks the statutory ground that the Department of Homeland Security (DHS) has identified as the basis for exclusion; the Board may note, for example, that DHS has charged the alien with previously committing a “crime involving moral turpitude,” see 8 U.S. C. (2)(A)(i)(I). Unless the charged ground is one of the pair falling outside ’s scope, see n. the Cite as: 565 U. S. (20) 5 Opinion of the Court alien is eligible for discretionary relief. The Board then determines whether to grant that relief based on such factors as “the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces.” St. Cyr, 533 U.S., at 296, n. 5. By contrast, when the BIA is deciding whether to deport an alien, applying becomes a tricky business. Recall that applies on its face only to exclusion decisions. So the question arises: How is the BIA to de- termine when an alien should receive relief in the deportation context? One approach that the BIA formerly used considered how the alien would fare in an exclusion proceeding. To perform this analysis, the Board would first determine whether the criminal conviction making the alien deporta- ble fell within a statutory ground for exclusion. Almost all convictions did so, largely because the “crime involving moral turpitude” ground encompasses so many offenses.2 Assuming that threshold inquiry were met, the Board would mimic its approach in exclusion cases—first making sure the statutory ground at issue was not excepted from and then conducting the multi-factor analysis. See Matter of Tanori, 5 I. & N. Dec. 566, ; In re Manzueta, No. A93 022 672, 2003 WL 29892 (BIA, Dec. 2003). A second approach is the one challenged here; definitive- ly adopted in (after decades of occasional use), it often is called the “comparable-grounds” rule. See, e.g., De la 579 F.3d 327, 332 —————— 2 Firearms offenses are the most significant crimes falling outside the statutory grounds for exclusion. See Matter of Hernandez-, 20 I. & N. Dec. 262, 282, n. 4 (990). 6 JUDULANG v. HOLDER Opinion of the Court That approach evaluates whether the ground for deportation charged in a case has a close ana- logue in the statute’s list of exclusion grounds. See In re ; In re3 If the deportation ground consists of a set of crimes “substantially equiva- lent” to the set of offenses making up an exclusion ground, then the alien can seek relief. 23 I. & N. Dec., at But if the deportation ground charged covers significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver. Such a divergence makes inapplicable even if the particular offense committed by the alien falls within an exclusion ground. Two contrasting examples from the BIA’s cases may help to illustrate this approach. Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has commit- ted an “aggravated felony” involving “illicit trafficking in a controlled substance.” 8 U.S. C. §§0(a)(43)(B), 227(a)(2)(A)(iii). Under the comparable-grounds rule, the immigration judge would look to see if that deportation ground covers substantially the same offenses as an exclu- sion ground. And according to the BIA in Matter of (99), the judge would find an ade- quate match—the exclusion ground applicable to aliens who have committed offenses “relating to a controlled substance,” 8 U.S. C. §(2)(A)(i)(II) and (a)(2)(C). Now consider an alien convicted of first-degree sexual abuse of a child, whom DHS wishes to deport on the ground that he has committed an “aggravated felony” —————— 3 and clarified a 2004 regulation issued by the BIA stating that an alien is ineligible for relief when deportable “on a ground which does not have a statutory counterpart in section 22.” 8 CFR §22.3(f)(5) (200). Cite as: 565 U. S. (20) 7 Opinion of the Court involving “sexual abuse of a minor.” §§0(a)(43)(A), 227(a)(2)(A)(iii). May this alien seek relief ? According to the BIA, he may not do so—not because his crime is too serious (that is irrelevant to the analysis), but instead because no statutory ground of exclusion covers substantially the same offenses. To be sure, the alien’s own offense is a “crime involving moral turpitude,” 8 U.S. C. (2)(A)(i)(I), and so fits within an exclusion ground. Indeed, that will be true of most or all offenses included in this deportation category. See But on the BIA’s view, the “moral turpitude” exclusion ground “addresses a distinctly different and much broader category of offenses than the aggravated felony sexual abuse of a minor charge.” 23 I. & N. Dec., at And the much greater sweep of the exclusion ground prevents the alien from seeking discretionary relief from deportation.4 Those mathematically inclined might think of the comparable-grounds approach as employing Venn dia- grams. Within one circle are all the criminal offenses com- posing the particular ground of deportation charged. Within other circles are the offenses composing the various exclu- sion grounds. When, but only when, the “deportation circle” sufficiently corresponds to one of the “exclusion circles” may an alien apply for relief. —————— 4 Careful readers may note that the example involving controlled substances offered in the last paragraph involves an exclusion ground that sweeps more broadly than the deportation ground charged. The deportation ground requires “trafficking” in a controlled substance, whereas the exclusion ground includes all possession offenses as well. The BIA nonetheless held in that the degree of overlap between the two grounds was sufficient to make the alien eligible for relief. That holding reveals the broad discretion that the BIA currently exercises in deciding when two statutory grounds are comparable enough. 8 JUDULANG v. HOLDER Opinion of the Court B Petitioner Joel Judulang is a native of the Philippines who entered the United States in 974 at the age of eight. Since that time, he has lived continuously in this country as a lawful permanent resident. In 988, Judulang took part in a fight in which another person shot and killed someone. Judulang was charged as an accessory and eventually pleaded guilty to voluntary manslaughter. He received a 6-year suspended sentence and was released on probation immediately after his plea. In after Judulang pleaded guilty to another crimi- nal offense (this one involving theft), DHS commenced an action to deport him. DHS charged Judulang with having committed an “aggravated felony” involving “a crime of violence,” based on his old manslaughter conviction. 8 U.S. C. §§0(a)(43)(F), 227(a)(2)(A)(iii).5 The Immi- gration Judge ordered Judulang’s deportation, and the BIA affirmed. As part of its decision, the BIA considered whether Judulang could apply for relief. It held that he could not do so because the “crime of violence” deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude. App. to Pet. for Cert. 8a. The Court of Appeals for the Ninth Circuit denied Judulang’s petition for review in reliance on circuit precedent upholding the BIA’s comparable-grounds approach. ). We granted certiorari, 563 U. S. (20), to resolve a circuit split on the approach’s validity.6 We now reverse. —————— 5 DHS charged two other grounds for deportation, but the BIA did not rule on those grounds and they are not before us. 6 Compare v. Carbone, 03 (rejecting the BIA’s approach and holding instead that “[i]f the offense that renders [an alien] deportable would render a similarly situated [alien] excludable, the deportable [alien] is eligible for a waiver of deporta- Cite as: 565 U. S. (20) 9 Opinion of the Court II This case requires us to decide whether the BIA’s policy for applying in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U.S. C. The scope of our review under this standard is “narrow”; as we have often recog- nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, 43 (983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 40 U.S. 402, 46 (97). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking. When reviewing an agency action, we must assess, among other matters, “ ‘whether the decision was based on a consideration of the relevant factors and whether there —————— tion”), with 42–44 (upholding the comparable-grounds policy); Caroleo v. Gonzales, 476 F.3d 58, 62–63, 68 (same); Kim v. Gonzales, 468 F.3d 58, 62–63 (CA 2006) (same). 7 The Government urges us instead to analyze this case under the second step of the test we announced in Chevron U. S. A. (984), to govern judicial review of an agency’s statutory interpretations. See Brief for Respondent 9. Were we to do so, our analysis would be the same, because under Chevron step two, we ask whether an agency interpreta- tion is “ ‘arbitrary or capricious in substance.’ ” Mayo Foundation for Medical Ed. and Research v. United States, 562 U. S. (20) (slip op., at 7) (quoting Household Credit Services, Inc. v. Pfennig, 54 U.S. 232, 242 (2004)). But we think the more apt analytic framework in this case is standard “arbitrary [or] capricious” review under the APA. The BIA’s comparable-grounds policy, as articulated in In re and In re 23 I. & N. Dec. 766 is not an interpretation of any statutory language—nor could it be, given that does not mention deportation cases, see infra, –7, and n. 0 JUDULANG v. HOLDER Opinion of the Court has been a clear error of judgment.’ ” State 463 U.S., at 43 (quoting Bowman Transp., 49 U.S. 28, (974)). That task involves examining the reasons for agency deci- sions—or, as the case may be, the absence of such reasons. See 556 U.S. 55 (noting “the requirement that an agency pro- vide reasoned explanation for its action”). The BIA has flunked that test here. By hinging a de- portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner. A The parties here spend much time disputing whether the BIA must make discretionary relief available to de- portable and excludable aliens on identical terms. As this case illustrates, the comparable-grounds approach does not do so. If Judulang were seeking entry to this country, he would be eligible for relief; voluntary man- slaughter is “a crime involving moral turpitude,” and so his conviction falls within an exclusion ground. But Judu- lang cannot apply for relief from deportation because the “crime of violence” ground charged in his case does not match any exclusion ground (including the one for “turpi- tudinous” crimes). See infra, at 3. Judulang argues that this disparity is impermissible because any disparity between excludable and deportable aliens is impermissi- ble: If an alien may seek relief in an exclusion case, he must be able to seek such relief in a deporta- tion case. See Brief for Petitioner 47–5.8 But the Gov- —————— 8 Judulang argues that the BIA is making an impermissible dis- tinction between two groups of deportable aliens—those who have recently left and returned to the country and those who have not. Cite as: 565 U. S. (20) Opinion of the Court ernment notes that the immigration laws have always drawn distinctions between exclusion and deportation. See Brief for Respondent 5. And the Government presses a policy reason for making relief more readily available in exclusion cases. Doing so, it argues, will provide an incentive for some resident aliens (i.e., those eligible for a waiver from exclusion, but not deportation) to report themselves to immigration officials, by applying for advance permission to exit and reenter the country. In contrast, applying uniformly might lead all aliens to “try to evade immigration officials for as long as possi- ble,” because they could in any event “seek [discretionary] relief if caught.” 2. In the end, we think this dispute beside the point, and we do not resolve it. The BIA may well have legitimate reasons for limiting ’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “ ‘relevant factors,’ ” State —————— According to Judulang, the BIA is treating the former as if they were seeking admission, while applying the “comparable grounds” approach only to the latter. See Reply Brief for Petitioner 6–8. That is the kind of distinction the Second Circuit held in 532 F.2d 268 violated equal protection. See at 3–4. But the Government contends that it is drawing no such line—that it is apply- ing the comparable-grounds policy to all deportable aliens. Brief for Respondent 29. We think the available evidence tends to support the Government’s representation. See In re -Castillo, No. A09 366 529, WL 455596 (applying comparable-grounds analysis to a deportable alien who had left and returned to the coun- try); In re Valenzuela-Morales, No. A40 443 52, (BIA, Apr. 23, 2008) (same). But in light of our holding that the comparable-grounds approach is arbitrary and capricious, we need not resolve this dispute about the BIA’s practice. 2 JUDULANG v. HOLDER Opinion of the Court (quoting Bowman Transp., 49 U.S., at ), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi- gration laws or the appropriate operation of the immigra- tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for relief on other, more rational bases. The problem with the comparable-grounds policy is that it does not impose such a reasonable limitation. Rather than considering factors that might be thought germane to the deportation decision, that policy hinges eligi- bility on an irrelevant comparison between statutory provisions. Recall that the BIA asks whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground. But so what if it does? Does an alien charged with a particular deportation ground become more worthy of relief because that ground happens to match up with another? Or less worthy of relief because the ground does not? The comparison in no way changes the alien’s prior offense or his other attrib- utes and circumstances. So it is difficult to see why that comparison should matter. Each of these statutory grounds contains a slew of offenses. Whether each con- tains the same slew has nothing to do with whether a deportable alien whose prior conviction falls within both grounds merits the ability to seek a waiver.9 —————— 9 The case would be different if Congress had intended for relief to depend on the interaction of exclusion grounds and deportation grounds. But the Government has presented us with no evidence to this effect, nor have we found any. See 489 F.3d, at 02 (Con- gress never contemplated, in drafting the immigration laws, “that its grounds of deportation would have any connection with the grounds of Cite as: 565 U. S. (20) 3 Opinion of the Court This case well illustrates the point. In commencing Judulang’s deportation proceeding, the Government charged him with an “aggravated felony” involving a “crime of violence” based on his prior manslaughter con- viction. See App. to Pet. for Cert. a–2a. That made him ineligible for relief because the “crime of vio- lence” deportation ground does not sufficiently overlap with the most similar exclusion ground, for “crime[s] involving moral turpitude.” The problem, according to the BIA, is that the “crime of violence” ground includes a few offenses—simple assault, minor burglary, and unauthor- ized use of a vehicle—that the “moral turpitude” ground does not. See 23 I. & N. Dec., at ; Tr. of Oral Arg. 28–29, 40–4. But this statutory differ- ence in no way relates to Judulang—or to most other aliens charged with committing a “crime of violence.” Perhaps aliens like Judulang should be eligible for relief, or perhaps they should not. But that determination is not sensibly made by establishing that simple assaults and minor burglaries fall outside a ground for exclusion. That fact is as extraneous to the merits of the case as a coin flip would be. It makes Judulang no less deserving of the opportunity to seek discretionary relief—just as its converse (the inclusion of simple assaults and burglaries in the “moral turpitude” exclusion ground) would make him no more so. Or consider a different headscratching oddity of the comparable-grounds approach—that it may deny eligibility to aliens whose deportation ground fits entirely inside an exclusion ground. The BIA’s decision, noted earlier, provides an example. See –7. The deportation ground charged was “aggravated felony” involving “sexual abuse of a minor”; the closest exclusion ground was, once again, a “crime [of] moral turpitude.” 23 —————— exclusion” in the application of ); see infra, –7. 4 JUDULANG v. HOLDER Opinion of the Court I. & N. Dec., at 727. Here, the BIA’s problem was not that the deportation ground covered too many offenses; all or virtually all the crimes within that ground are crimes of moral turpitude. Rather, the BIA objected that the deportation ground covered too few crimes—or put oppo- sitely, that “the moral turpitude ground of exclusion ad- dresses a much broader category of offenses.” at But providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group.0 (The better argument would surely be the reverse—that giving relief in the one context supports doing so in the other.) Again, we do not say today that the BIA must give all deportable aliens meeting ’s requirements the chance to apply for a waiver. See at –2. The point is instead that the BIA cannot make that opportunity turn on the meaning- less matching of statutory grounds. And underneath this layer of arbitrariness lies yet another, because the outcome of the Board’s comparable- grounds analysis itself may rest on the happenstance of an immigration official’s charging decision. This problem arises because an alien’s prior conviction may fall within a number of deportation grounds, only one of which corre- sponds to an exclusion ground. Consider, for example, an alien who entered the country in 984 and commit- ted voluntary manslaughter in 988. That person could be charged (as Judulang was) with an “aggravated fel- ony” involving a “crime of violence,” see 8 U.S. C. §§0(a)(43)(F), 227(a)(2)(A)(iii). If so, the alien could not seek a waiver because of the absence of a comparable exclusion ground. But the alien could be charged —————— 0 Perhaps that is why the BIA declined to apply similar reasoning in —a case involving an exclusion ground that sweeps more broadly than a deportation ground (although not to the same extent as in ). See Cite as: 565 U. S. (20) 5 Opinion of the Court with “a crime involving moral turpitude committed within five years after the date of admission,” see §227(a)(2)(A)(i)(I). And if that were the deportation charge, the alien could apply for relief, because the ground corresponds to the “moral turpitude” ground used in ex- clusion cases. See In re Salmon, 6 I. & N. Dec. 734 (978). So everything hangs on the charge. And the Government has provided no reason to think that immi- gration officials must adhere to any set scheme in deciding what charges to bring, or that those officials are exercising their charging discretion with in mind. See Tr. of Oral Arg. 34–36. So at base everything hangs on the fortuity of an individual official’s decision. An alien ap- pearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country. In a foundational deportation case, this Court recog- nized the high stakes for an alien who has long resided in this country, and reversed an agency decision that would “make his right to remain here dependent on circumstan- ces so fortuitous and capricious.” 39 (947). We think the policy before us similarly flawed. The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distin- guishes among aliens—decides who should be eligible for discretionary relief and who should not—solely by compar- ing the metes and bounds of diverse statutory categories into which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws. Judge Learned Hand wrote in another early immigration case that deportation decisions cannot be made a “sport of chance.” See Di 58 F.2d 878, (CA2 947) (quoted in 455 (963)). That is what the comparable-grounds rule 6 JUDULANG v. HOLDER Opinion of the Court brings about, and that is what the APA’s “arbitrary and capricious” standard is designed to thwart. B The Government makes three arguments in defense of the comparable-grounds rule—the first based on statutory text, the next on history, the last on cost. We find none of them persuasive. The Government initially contends that the comparable- grounds approach is more faithful to “the statute’s lan- guage,” Brief for Respondent 2—or otherwise said, that “lifting that limit ‘would take immigration practice even further from the statutory text,’ ” (quoting Matter of Hernandez-, (990)). In the Government’s view, is “phrased in terms of waiving statutorily specified grounds of exclusion”; that phrasing, says the Government, counsels a comparative analysis of grounds when applying in the deporta- tion context. Brief for Respondent 2; see Tr. of Oral Arg. 34 (“[T]he reason [the comparable-grounds approach] makes sense is because the statute only provides for relief from grounds of exclusion”). The first difficulty with this argument is that it is based on an inaccurate description of the statute. Section 22(c) instructs that certain resident aliens “may be admitted in the discretion of the Attorney General” notwithstanding any of “the provisions of subsection (a) (other than paragraphs (3) and (9)(C)).” 8 U.S. C. (994 ed.). Subsection (a) contains the full list of exclusion grounds; paragraphs (3) and (9)(C) (which deal with national secu- rity and international child abduction) are two among these. What actually says, then, is that the Attor- ney General may admit any excludable alien, except if the alien is charged with two specified grounds. And that Cite as: 565 U. S. (20) 7 Opinion of the Court means that once the Attorney General determines that the alien is not being excluded for those two reasons, the ground of exclusion no longer matters. At that point, the alien is eligible for relief, and the thing the Attorney Gen- eral waives is not a particular exclusion ground, but the simple denial of entry. So the premise of the Govern- ment’s argument is wrong. And if the premise, so too the conclusion—that is, because ’s text is not “phrased in terms of waiving statutorily specified grounds of exclu- sion,” Brief for Respondent 2, it cannot counsel a search for corresponding grounds of deportation. More fundamentally, the comparable-grounds approach would not follow from even were the Government right about the section’s phrasing. That is because simply has nothing to do with deportation: The provision was not meant to interact with the statutory grounds for deportation, any more than those grounds were designed to interact with the provision. Rather, refers solely to exclusion decisions; its extension to deportation cases arose from the agency’s extra-textual view that some similar relief should be available in that context to avoid unreasonable distinctions. Cf., e.g., Matter of L-, I. & N. Dec., ; see at 3–4. Accordingly, the text of whether or not phrased in terms of “waiving grounds of exclusion,” cannot support the BIA’s use of the —————— Congress amended just five months before repealing it, to include a first-time reference to deportation cases. That amendment prohibited the Attorney General from granting discretionary relief to aliens deportable on several specified grounds. See Antiterrorism and Effective Death Penalty Act of 996, 0 Stat. 277 (effective Apr. 24, 996). The change does not affect our analysis, nor does the Govern- ment argue it should. As the Government notes, the amendment “did not speak to the viability of the Board’s” comparable-grounds rule, but instead made categorically ineligible for relief “those deportable by reason of certain crimes.” Brief for Respondent 20. Presumably, Congress thought those crimes particularly incompatible with an alien’s continued residence in this country. 8 JUDULANG v. HOLDER Opinion of the Court comparable-grounds rule—or, for that matter, any other method for extending discretionary relief to deportation cases. We well understand the difficulties of operating in such a text-free zone; indeed, we appreciate the Govern- ment’s yearning for a textual anchor. But no matter how many times read or parsed, does not provide one. 2 In disputing Judulang’s contentions, the Government emphasizes the comparable-grounds rule’s vintage. See Brief for Respondent 22–23, 30–43. As an initial matter, we think this a slender reed to support a signifi- cant government policy. Arbitrary agency action becomes no less so by simple dint of repetition. (To use a prior analogy, flipping coins to determine eligibility would remain as arbitrary on the thousandth try as on the first.) And longstanding capriciousness receives no special exemption from the APA. In any event, we cannot detect the consistency that the BIA claims has marked its ap- proach to this issue. To the contrary, the BIA has repeat- edly vacillated in its method for applying to de- portable aliens. Prior to 984, the BIA endorsed a variety of approaches. In Matter of T-, (953), for example, the BIA held that an alien was not eligible for relief because her “ground of deportation” did not appear in the exclusion statute. That decision anticipated the comparable-grounds approach that the BIA today uses. But in Tanori, the BIA pronounced that a deportable alien could apply for a waiver because “the same facts”—in that case, a marijuana conviction—would have allowed him to seek relief in an exclusion proceeding. 5 I. & N. Dec., 68. That approach is more nearly similar to the one Judulang urges here. And then, in Matter of Grana- dos, 6 I. & N. Dec. 726, (979), the BIA tried to have Cite as: 565 U. S. (20) 9 Opinion of the Court it both ways: It denied eligibility both because the deportation ground charged did not correspond to, and because the alien’s prior conviction did not fall within, a waivable ground of exclusion. In short, the BIA’s cases were all over the map. The Government insists that the BIA imposed order in Matter of Wadud, 9 I. & N. Dec. 82, 85–86 (984), when it held that a deportable alien could not seek relief unless the deportation ground charged had an “anal- ogous ground of inadmissibility.” See Brief for Respondent 40–4. But the BIA’s settlement, if any, was fleeting. Just seven years later, the BIA adopted a new policy entirely, extending eligibility to “aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 22(c).” Hernandez- That new rule turned the comparable-grounds approach inside-out, allowing aliens to seek relief in deportation cases except when the ground charged corresponded to an exclusion ground that could not be waived. To be sure, the Attorney General (on referral of the case from the BIA), disavowed this position in favor of the more standard version of the comparable- grounds rule. at But even while doing so, the Attorney General stated that “an alien subject to deporta- tion must have the same opportunity to seek discretionary relief as an alien subject to exclusion.” That assertion is exactly the one Judulang makes in this case; it is consonant not with the comparable-grounds rule the BIA here defends, but instead with an inquiry into wheth- er an alien’s prior conviction falls within an exclusion ground. Given these mixed signals, it is perhaps not surprising that the BIA continued to alternate between approaches in the years that followed. Immediately after the Attorney General’s opinion in Hernandez-, the BIA en- 20 JUDULANG v. HOLDER Opinion of the Court dorsed the comparable-grounds approach on several occa- sions. See ; Matter of Monte- negro, (992); Matter of Gabryelsky, (993); In re Esposito, 2, (995); In re Jimenez- Santillano, 2 I. & N. Dec. 567, 57–572 (996). But just a few years later, the BIA issued a series of unpublished opinions that asked only whether a deportable alien’s prior conviction fell within an exclusion ground. See, e.g., In re Manzueta, No. A93 022 672, 2003 WL 29892 (Dec. 2003). Not until the BIA’s decisions in and did the pendulum stop swinging. That histo- ry hardly supports the Government’s view of a consistent agency practice.2 3 The Government finally argues that the comparable- grounds rule saves time and money. The Government claims that comparing deportation grounds to exclusion grounds can be accomplished in just a few “precedential decision[s],” which then can govern broad swaths of cases. See Brief for Respondent 46. By contrast, the Government argues, Judulang’s approach would force it to determine whether each and every crime of conviction falls within an exclusion ground. Further, the Government contends that Judulang’s approach would grant eligibility to a greater —————— 2 Because we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s argument that and were imper- missibly retroactive. To succeed on that theory, Judulang would have to show, at a minimum, that in entering his guilty plea, he had reason- ably relied on a legal rule from which and departed. See (stating that retroactivity analysis focuses on “considerations of fair notice, reasonable reliance, and settled expectations”). The instability of the BIA’s prior practice prevents Judulang from making this showing: The BIA sometimes recognized aliens in Judulang’s position as eligible for relief, but sometimes did not. Cite as: 565 U. S. (20) 2 Opinion of the Court number of deportable aliens, which in turn would force the Government to make additional individualized assess- ments of whether to actually grant relief. Once again, the Government’s rationale comes up short. Cost is an important factor for agencies to consider in many contexts. But cheapness alone cannot save an arbi- trary agency policy. (If it could, flipping coins would be a valid way to determine an alien’s eligibility for a waiver.) And in any event, we suspect the Government exaggerates the cost savings associated with the comparable-grounds rule. Judulang’s proposed approach asks immigration officials only to do what they have done for years in exclu- sion cases; that means, for one thing, that officials can make use of substantial existing precedent governing whether a crime falls within a ground of exclusion. And Judulang’s proposal may not be the only alternative to the comparable-grounds rule. See at –2. In reject- ing that rule, we do not preclude the BIA from trying to devise another, equally economical policy respecting eligi- bility for relief, so long as it comports with every- thing held in both this decision and St. Cyr. III We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance—whether law- ful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protes- tations, it is not supported by text or practice or cost con- siderations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law. The judgment of the Ninth Circuit is hereby reversed, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered

Justice Brennan

dissenting

Atascadero State Hospital v. Scanlon

https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/

https://www.courtlistener.com/api/rest/v3/clusters/111503/

1984-154

If the Court's Eleventh Amendment doctrine were grounded on principles essential to the structure of our federal system or necessary to protect the cherished constitutional liberties of our people, the doctrine might be unobjectionable; the interpretation of the text of the Constitution in light of changed circumstances and unforeseen events — and with full regard for the purposes underlying the text — has always been the unique role of this Court. But the Court's *248 Eleventh Amendment doctrine diverges from text and history virtually without regard to underlying purposes or genuinely fundamental interests. In consequence, the Court has put the federal judiciary in the unseemly position of exempting the States from compliance with laws that bind every other legal actor in our Nation. Because I believe that the doctrine rests on flawed premises, misguided history, and an untenable vision of the needs of the federal system it purports to protect, I believe that the Court should take advantage of the opportunity provided by this case to reexamine the doctrine's historical and jurisprudential foundations. Such an inquiry would reveal that the Court, in Professor Shapiro's words, has taken a wrong turn.[1] Because the Court today follows this mistaken path, I respectfully dissent. I I first address the Court's holding that Congress did not succeed in abrogating the States' sovereign immunity when it enacted § 504 of the Rehabilitation Act, 29 U.S. C. § 794. If this holding resulted from the Court's examination of the statute and its legislative history to determine whether Congress intended in § 504 to impose an obligation on the States enforceable in federal court, I would confine my dissent to the indisputable evidence to the contrary in the language and history of § 504. Section 504 imposes an obligation not to discriminate against the handicapped in "any program or activity receiving Federal financial assistance." This language is general and unqualified, and contains no indication whatsoever that an exemption for the States was intended. Moreover, state governmental programs and activities are undoubtedly the recipients of a large percentage of federal funds.[2] Given this *249 widespread state dependence on federal funds, it is quite incredible to assume that Congress did not intend that the States should be fully subject to the strictures of § 504. The legislative history confirms that the States were among the primary targets of § 504. In introducing the predecessor of § 504 as an amendment to Title VI of the Civil Rights Act of 1964, 42 U.S. C. § 2000d, Representative Vanik clearly indicated that governments would be among the primary targets of the legislation: "Our Governments tax [handicapped] people, their parents and relatives, but fail to provide services for them. . . . The opportunities provided by the Government almost always exclude the handicapped." 117 Cong. Rec. 45974 (1971). He further referred approvingly to a federal-court suit against the State of Pennsylvania raising the issue of educational opportunities for the handicapped. See id., at 45974-45975 (citing Pennsylvania Assn. for Retarded Children v. Pennsylvania, 343 F. Supp. 279 (ED Pa 1972), and characterizing it as a "suit against the State"). Two months later, Representative Vanik noted the range of state actions that could disadvantage the handicapped. He said that state governments "lack funds and facilities" for medical care for handicapped children and "favor the higher income families" in tuition funding. 118 Cong. Rec. 4341 (1972). He pointed out that "the States are unable to define and deal with" the illnesses of the handicapped child, and that "[e]xclusion of handicapped children [from public schools] is illegal in some States, but the States plead lack of funds." Ibid. Similarly, Senator Humphrey, the bill's sponsor in the Senate, focused particularly on a suit against a state-operated institution for the mentally retarded as demonstrating the need for the bill. See id., at 9495, 9502. The language used in the statute ("any program or activity receiving Federal financial assistance") has long been used *250 to impose obligations on the States under other statutory schemes. For example, Title VI, enacted in 1964, bans discrimination on the basis of race, color, or national origin by "any program or activity receiving Federal financial assistance." 42 U.S. C. § 2000d. Soon after its enactment, seven agencies promulgated regulations that defined a recipient of federal financial assistance to include "any State, political subdivision of any State or instrumentality of any State or political subdivision." See, e. g., 29 Fed. Reg. 16274, § 15.2(e) (1964). See generally Guardians Assn. v. Civil Service Comm'n of New York City, 463 U.S. 582, 618 (1983) (MARSHALL, J., dissenting). Over 40 federal agencies and every Cabinet Department adopted similar regulations. Id., at 619. As Senator Javits remarked in the debate on Title VI, "[w]e are primarily trying to reach units of government, not individuals." 110 Cong. Rec. 13700 (1964). Similarly Title IX of the Education Amendments of 1972, 20 U.S. C. § 1681(a), prohibits discrimination on the basis of sex by "any education program or activity receiving Federal financial assistance." The regulations governing Title IX use the same definition of "recipient" — which explicitly includes the States — as do the Title VI regulations. See 34 CFR § 106.2(h) (1985). The Congress that enacted § 504 had the examples of Titles VI and IX before it, and plainly knew that the language of the statute would include the States.[3] *251 Implementing regulations promulgated for § 504 included the same definition of "recipient" that had previously been used to implement Title VI and Title IX. See 45 CFR § 84.3(f) (1984). In 1977, Congress held hearings on the implementation of § 504, and subsequently produced amendments to the statute enacted in 1978. Pub. L. 95-602, 92 Stat. 2982, § 505(a)(2), 29 U.S. C. § 794a. The Senate Report accompanying the amendments explicitly approved the implementing regulations. S. Rep. No. 95-890, p. 19 (1981). No Member of Congress questioned the reach of the regulations. In describing another section of the 1978 amendments which brought the Federal Government within the reach of § 504, Representative Jeffords noted that the section "applies 504 to the Federal Government as well as State and local recipients of Federal dollars." 124 Cong. Rec. 13901 (1978).[4] Representative Sarasin emphasized that "[n]o one should discriminate against an individual because he or she suffers from a handicap — not private employers, not State and local governments, and most certainly, not the Federal Government." Id., at 38552. The 1978 amendments also addressed the remedies for violations of § 504: "The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S. C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title." 29 U.S. C. § 794a(a)(2). Again, the amendment referred in general and unqualified terms to "any recipient of Federal assistance." An additional *252 provision of the 1978 amendments made available attorney's fees to prevailing parties in actions brought to enforce § 504. Discussing these two provisions, Senator Cranston presupposed that States would be subject to suit under this section: "[W]ith respect to State and local bodies or State and local officials, attorney's fees, similar to other items of cost, would be collected from the official, in his official capacity from funds of his or her agency or under his or her control; or from the State or local government — regardless of whether such agency or Government is a named party." 124 Cong. Rec. 30347 (1978) Given the unequivocal legislative history, the Court's conclusion that Congress did not abrogate the States' sovereign immunity when it enacted § 504 obviously cannot rest on an analysis of what Congress intended to do or on what Congress thought it was doing. Congress intended to impose a legal obligation on the States not to discriminate against the handicapped. In addition, Congress fully intended that whatever remedies were available against other entities — including the Federal Government itself after the 1978 amendments — be equally available against the States. There is simply not a shred of evidence to the contrary. II Rather than an interpretation of the intent of Congress, the Court's decision rests on the Court's current doctrine of Eleventh Amendment sovereign immunity, which holds that "the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III" of the Constitution. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98 (1984). Despite the presence of the most clearly lawless behavior by the state government, the Court's doctrine holds that the judicial authority of the United States *253 does not extend to suits by an individual against a State in federal court. The Court acknowledges that the supposed lack of judicial power may be remedied, either by the State's consent,[5] or by express congressional abrogation pursuant to the Civil War Amendments, see Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446 U.S. 156 (1980), or perhaps pursuant to other congressional powers. But the Court has raised formidable obstacles to congressional efforts to abrogate the States' immunity; the Court has put in place a series of special rules of statutory draftsmanship that Congress *254 must obey before the Court will accord recognition to its act. Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279 (1973), held that Congress must make its intention "clear" if it sought to lift the States' sovereign immunity conditional on their participation in a federal program. Id., at 285. Edelman v. Jordan, 415 U.S. 651 (1974), made it still more difficult for Congress to act, stating that "we will find waiver only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction." Id., at 673. Pennhurst State School and Hospital v. Halderman, supra, required "an unequivocal expression of congressional intent." Id., at 99. Finally, the Court today tightens the noose by requiring "that Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Ante, at 243 (emphasis added). These special rules of statutory drafting are not justified (nor are they justifiable) as efforts to determine the genuine intent of Congress; no reason has been advanced why ordinary canons of statutory construction would be inadequate to ascertain the intent of Congress. Rather, the special rules are designed as hurdles to keep the disfavored suits out of the federal courts. In the Court's words, the test flows from the need to maintain "the usual constitutional balance between the States and the Federal Government." Ante, at 242.[6] The doctrine is thus based on a fundamental policy decision, vaguely attributed to the Framers of Article III or the Eleventh Amendment, that the federal courts ought not to hear suits brought by individuals against States. This Court executes the policy by making it difficult, but not impossible, *255 for Congress to create private rights of action against the States.[7] Reliance on this supposed constitutional policy reverses the ordinary role of the federal courts in federal-question cases. Federal courts are instruments of the National Government, seeing to it that constitutional limitations are obeyed while interpreting the will of Congress in enforcing the federal laws. In the Eleventh Amendment context, however, the Court instead relies on a supposed constitutional policy disfavoring suits against States as justification for ignoring the will of Congress; the goal seems to be to obstruct the ability of Congress to achieve ends that are otherwise constitutionally unexceptionable and well within the reach of its Article I powers. The Court's sovereign immunity doctrine has other unfortunate results. Because the doctrine is inconsistent with the *256 essential function of the federal courts — to provide a fair and impartial forum for the uniform interpretation and enforcement of the supreme law of the land — it has led to the development of a complex body of technical rules made necessary by the need to circumvent the intolerable constriction of federal jurisdiction that would otherwise occur. Under the rule of Ex parte Young, 209 U.S. 123 (1908), a State may be required to obey federal law, so long as the plaintiff remembers to name a state official rather than the State itself as defendant, see Alabama v. Pugh, 438 U.S. 781 (1978), and so long as the relief sought is prospective rather than retrospective. Edelman v. Jordan, 415 U.S. 651 (1974).[8] These intricate rules often create manifest injustices while failing to respond to any legitimate needs of the States. A damages award may often be the only practical remedy available to the plaintiff,[9] and the threat of a damages award may be the only effective *257 deterrent to a defendant's willful violation of federal law. Cf. id., at 691-692 (MARSHALL, J., dissenting). While the prohibition of damages awards thus imposes substantial costs on plaintiffs and on members of a class Congress sought to protect, the injunctive relief that s permitted can often be more intrusive — and more expensive — than a simple damages award would be.[10] The Court's doctrine itself has been unstable. As I shall discuss below, the doctrine lacks a textual anchor, a firm historical foundation, or a clear rationale. As a result, it has been impossible to determine to what extent the principle of state accountability to the rule of law can or should be accommodated within the competing framework of state nonaccountability put into place by the Court's sovereign immunity doctrine. For this reason, we have been unable to agree on the content of the special "rules" we have applied to Acts of Congress to determine whether they abrogate state sovereign immunity. Compare Parden v. Terminal Railway of Ala. Docks Dept., 377 U.S. 184 (1964), with Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279 (1973). Whatever rule is decided upon at a given time is then applied retroactively to actions taken by Congress. See n. 7, supra. Finally, in the absence of any plausible *258 limiting principles, the Court has overruled and ignored past cases that seemed to stand in the way of vindication of the doubtful States' right the Court has created. See Pennhurst State School and Hospital v. Halderman, 465 U. S., at 165-166, n. 50. I might tolerate all of these results — the unprecedented intrusion on Congress' lawmaking power and consequent increase in the power of the courts, the development of a complex set of rules to circumvent the obviously untenable results that would otherwise ensue, the lack of respect for precedent and the lessons of the past evident in Pennhurst — if the Court's sovereign immunity doctrine derived from essential constitutional values protecting the freedom of our people or the structure of our federal system. But that is sadly not the case. Instead, the paradoxical effect of the Court's doctrine is to require the federal courts to protect States that violate federal law from the legal consequences of their conduct. III Since the Court began over a decade ago aggressively to expand its doctrine of Eleventh Amendment sovereign immunity, see Employees v. Missouri Dept. of Public Health and Welfare, supra, modern scholars and legal historians have taken a critical look at the historical record that is said to support the Court's result.[11] Recent research has discovered *259 and collated substantial evidence that the Court's constitutional doctrine of state sovereign immunity has rested on a mistaken historical premise. The flawed underpinning is the premise that either the Constitution or the Eleventh Amendment embodied a principle of state sovereign immunity as a limit on the federal judicial power. New evidence concerning the drafting and ratification of the original Constitution indicates that the Framers never intended to constitutionalize the doctrine of state sovereign immunity. Consequently, the Eleventh Amendment could not have been, as the Court has occasionally suggested, an effort to reestablish a limitation on the federal judicial power granted in Article III. Nor, given the limited terms in which it was written, could the Amendment's narrow and technical language be understood to have instituted a sweeping new limitation on the federal judicial power whenever an individual attempts to sue a State. A close examination of the historical records reveals a rather different status for the doctrine of state sovereign immunity in federal court. There simply is no constitutional principle of state sovereign immunity, and no constitutionally mandated policy of excluding suits against States from federal court. A In Hans v. Louisiana, 134 U.S. 1 (1890), the Court stated that to permit a citizen to bring a suit against a State in federal court would be "an attempt to strain the Constitution and the law to a construction never imagined or dreamed of." Id., at 15. The text of the Constitution, of course, contains no explicit adoption of a principle of state sovereign immunity. The passage from Hans thus implies that everyone involved in the framing or ratification of the Constitution believed *260 that Article III included a tacit prohibition on the exercise of the judicial power when a State was being sued in federal court. The early history of the Constitution reveals, however, that the Court in Hans was mistaken. The unamended Article III was often read to the contrary to prohibit not the exercise of the judicial power, but the assertion of state sovereign immunity as a defense, even in cases arising solely under state law. It is useful to begin with the text of Article III. Section 2 provides: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States, — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." The judicial power of the federal courts thus extends only to certain types of cases, identified either by subject matter or parties. The subject-matter heads of jurisdiction include federal questions ("all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made") and admiralty ("all Cases of admiralty and maritime Jurisdiction"). The party-based heads of jurisdiction include what might be called ordinary diversity ("Controversies. . . between Citizens of different States"), state-citizen diversity ("between a State and Citizens of another State"), and state-alien diversity ("between a State . . . and foreign . . . Citizens"). It is the latter two clauses, providing for state-citizen and state-alien diversity, that were *261 at the focus of the Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793), and the subsequent ratification of the Eleventh Amendment. To understand the dispute concerning the state-citizen and state-alien diversity clauses, it is crucial to understand the relationship between the party-based and subject-matter heads of jurisdiction. The grants of jurisdiction in Article III are to be read disjunctively. The federal judicial power may extend to a case if it falls within any of the enumerated jurisdictional heads. Thus, a federal court can hear a federal-question case even if the parties are citizens of the same state; it can exercise jurisdiction over cases between citizens of different states even where the case does not arise under federal law. Most important for present purposes, the language of the unamended Article III alone would permit the federal courts to exercise jurisdiction over suits in which a noncitizen or alien is suing a State on a claim of a violation of state law. This standard interpretation of Article III gave a special importance to the interpretation of the state-citizen and state-alien diversity clauses. The clauses by their terms permitted federal jurisdiction over any suit between a State and a noncitizen or a State and an alien, and in particular over suits in which the plaintiff was the noncitizen or alien and the defendant was the State. Yet in most of the States in 1789, the doctrine of sovereign immunity formally forbade the maintenance of suits against States in state courts, although the actual effect of this bar in frustrating legal claims against the State was unclear.[12] Thus, the question left open by the terms of the two clauses was whether the state law of *262 sovereign immunity barred the exercise of the federal judicial power. A plaintiff seeking federal jurisdiction against a State under the state-citizen or state-alien diversity clauses would be asserting a cause of action based on state law, since a federal question or admiralty claim would provide an independent basis for jurisdiction that did not depend on the identity of the parties. To read the two clauses to abrogate the state-law sovereign immunity defense would be to find in Article III a substantive federal limitation on state law. Although a State previously could create a cause of action to which it would not itself be liable, this same cause of action now could be used (at least by citizens of other States or aliens) in federal courts to sue the State itself. This was a particularly troublesome prospect to the States that had incurred debts, some of which dated back to the Revolutionary War. The debts would naturally find their way into the hands of noncitizens and aliens, who at the first sign of default could be expected promptly to sue the State in federal court. The State's effort to retain its sovereign immunity in its own courts would turn out to be futile. Moreover, the resulting abrogation of sovereign immunity would operate retroactively; even debts incurred years before the Constitution was adopted — and before either of the contracting parties expected that a judicial remedy against the State would be available — would become the basis for causes of action brought under the two clauses in federal court. In short, the danger of the state-citizen and state-alien diversity clauses was that, if read to permit suits against States, they would have the effect of limiting state law in a way not otherwise provided for in the Constitution. The original Constitution prior to the Bill of Rights contained only a few express limitations on state power. Yet the States would now find in Article III itself a further limit on state action: Despite the fact that the State as sovereign had created a given cause of action, Article III would have made it impossible *263 for the State effectively to assert a sovereign immunity defense to that action. The records of the Constitutional Convention do not reveal any substantial controversy concerning the state-citizen and state-alien diversity clauses.[13] The language of Article III,[14] which provides one guide to its meaning, is undoubtedly consistent with suits against States under both subject-matter heads of jurisdiction (for example, a suit arising out of federal law brought by a citizen against a State) and party-based heads of jurisdiction (for example, a suit brought under the state-citizen diversity clause itself). However, a federal-question suit against a State does not threaten to displace a prior state-law defense of sovereign immunity, because state-law defenses would not of their own force be applicable to federal causes of action. On the other hand, a state-citizen suit against a State does, as suggested above, threaten to displace any extant state-law sovereign immunity defense. An examination of the debates surrounding the state ratification conventions proves more productive. The various *264 references to state sovereign immunity all appear in discussions of the state-citizen diversity clause. Virtually all of the comments were addressed to the problem created by state debts that predated the Constitution, when the State's creditors may often have had meager judicial remedies in the case of default. Yet, even in this sensitive context, a number of participants in the debates welcomes the abrogation of sovereign immunity that they thought followed from the state-citizen and state-alien clauses. The debates do not directly address the question of suits against States in admiralty or federal-question cases, where federal law and not state law would govern. Nonetheless, the apparent willingness of many delegates to read the state-citizen clause as abrogating sovereign immunity in state-law causes of action suggests that they would have been even more willing to permit suits against States in federal-question cases, where Congress had authorized such suits in the exercise of its Article I or other powers. The Virginia debates included the most detailed discussion of the state-citizen diversity clause.[15] The first to mention the clause explicitly was George Mason, an opponent of the new Constitution. After quoting the clause, he referred to a *265 dispute about Virginia's confiscation of property belonging to Lord Fairfax.[16] He asserted: "Claims respecting those lands, every liquidated account, or other claim against this state, will be tried before the federal court. Is not this disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender? Will the states undergo this mortification? I think this power perfectly unnecessary. But let us pursue this subject farther. What is to be done if a judgment be obtained against a state? Will you issue a fieri facias? It would be ludicrous to say that you could put the state's body in jail. How is the judgment, then, to be enforced? A power which cannot be executed ought not to be granted." 3 Elliot's Debates, at 526-527. Mason thus believed that the state-citizen diversity clause provided federal jurisdiction for suits against the States and would have the effect of abrogating the State's sovereign immunity defense in state-law causes of action for debt that would be brought in federal court. Madison responded the next day: "[Federal] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The 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. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts." Id., at 533. *266 Madison seems to have believed that the Article III judicial power, at least under the state-citizen diversity clause, was limited to cases in which the States were plaintiffs. Although he does deny that "[i]t is in the power of individuals to call any State into court," this remark could be understood as an explication of current state law which he believed would not be displaced by the state-citizen diversity clause. His remarks certainly do not suggest that Congress, acting under its enumerated powers elsewhere in the Constitution, could not "call a state into court," or, again acting within its own granted powers, provide a citizen with the power to sue a State in federal court. At any rate, the delegates were not wholly satisfied with Madison's explanation. Patrick Henry, an opponent of ratification, was the next speaker. Referring to Mason, he said: "My honorable friend's remarks were right, with respect to incarcerating a state. It would ease my mind, if the honorable gentleman would tell me the manner in which money should be paid, if, in a suit between a state and individuals, the state were cast." Id., at 542. Returning to the attack on Madison, Henry had no doubt concerning the meaning of the state-citizen diversity clause: "As to controversies between a state and the citizens of another state, his construction of it is to me perfectly incomprehensible. He says it will seldom happen that a state has such demands on individuals. There is nothing to warrant such an assertion. But he says that the state may be plaintiff only. If gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant. What says the honorable gentleman? The contrary — that the state can only be plaintiff. When the state is debtor, there is no reciprocity. It seems to me that *267 gentlemen may put what construction they please on it. What! is justice to be done to one party, and not to the other?" Id., at 543. Edmund Pendleton, the President of the Virginia Convention and the next speaker, supported ratification but seems to have agreed with Henry that the state-citizen diversity clause would subject the States to suit in federal court. He said that "[t]he impossibility of calling a sovereign state before the jurisdiction of another sovereign state, shows the propriety and necessity of vesting this tribunal with the decision of controversies to which a state shall be a party." Id., at 549. John Marshall next took up the debate: "With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. 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. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be a partiality in it if a state cannot be defendant — if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular state, is it to be presumed that, on application to its legislature, he will not obtain satisfaction? But how could a state recover any claim from a citizen of another *268 state, without the establishment of these tribunals?" Id., at 555-556. Marshall's remarks, like Madison's, appear to suggest that the state-citizen diversity clause could not be used to make an unwilling State a defendant in federal court. The reason seems to be that "it is not rational to suppose that the sovereign power should be dragged before a court." Of course, where the cause of action is based on state law, as it would be in a suit under the state-citizen diversity clause, the "sovereign power" whose law governed would be the State, and Marshall is consequently correct that it would be "irrational" to suppose that the sovereign could be forced to abrogate the sovereign immunity defense that its own law had created. However, where the cause of action is based on a federal law enacted pursuant to Congress' Article I powers, it would be far less clear that Marshall would have concluded that the State still retained the relevant "sovereignty"; in such a case, there is nothing "irrational" about supposing that the relevant sovereign — in this case, Congress — had subjected the State to suit.[17] Marshall's observations did not go unanswered. Edmund Randolph, a member of the Committee of Detail at the Constitutional Convention and a proponent of the Constitution, referred back to Mason's remarks: "An honorable gentleman has asked, Will you put the body of the state in prison? How is it between independent states? If a government refuses to do justice to individuals, war is the consequence. Is this the bloody alternative to which we are referred. . . . I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not *269 defendant, is taken away by the words where a state shall be a party." Id., at 573. Randolph was convinced that a State could be made a party defendant. Discussing some disputed land claims, he remarked: "One thing is certain — that . . . the remedy will not be sought against the settlers, but the state of Virginia. The court of equity will direct a compensation to be made by the state." Id., at 574. Finally, he concluded his discussion: "I ask the Convention of the free people of Virginia if there can be honesty in rejecting the government because justice is to be done by it? . . . Are we to say that we shall discard this government because it would make us all honest?" Id., at 575.[18] One of the purposes of Article III was to vest in the federal courts the power to settle disputes that might threaten the peace and unity of the Nation.[19] Randolph saw the danger of just this kind of internecine strife when a State reneges on debts owed to citizens of another State, and consequently applauded the extension of federal jurisdiction to avoid these consequences. The Virginia Convention ratified the Constitution. The Madison and Marshall remarks have been cited as evidence of an inherent limitation on Article III jurisdiction. See, e. g., Edelman v. Jordan, 415 U. S., at 660, n. 9; Monaco v. Mississippi, 292 U.S. 313, 323-325 (1934); Hans v. Louisiana, 134 U. S., at 14. Even if this adequately characterized the substance of their views, they were a minority of those given at the Convention. Mason, Henry, Pendleton, and Randolph *270 all took an opposing position.[20] Equally important, the entire discussion focused on the question of Virginia's liability for debts and land claims that predated the Constitution and clearly arose under Virginia law. The question that excited such interest was whether the state-citizen diversity clause itself abrogated the sovereign immunity defense that would be available to the State in a suit concerning these issues in state court.[21] The same issue arose in a few other state conventions, but did not receive the detailed attention that it did in Virginia.[22] *271 The debate in the press sheds further light on the effect of the Constitution on state sovereign immunity. A number of influential anti-Federalist publications sounded the alarm at what they saw as the unwarranted extension of the federal judicial power worked by the state-citizen diversity clause. The "Federal Farmer," commonly identified as Richard Henry Lee of Virginia, was one influential and widely published anti-Federalist. He objected: "There are some powers proposed to be lodged in the general government in the judicial department, I think very unnecessarily, I mean powers respecting questions arising upon the internal laws of the respective states. It is proper the federal judiciary should have powers co-extensive with the federal legislature — that is, the power of deciding finally on the laws of the union. By Art. 3. Sect. 2. the powers of the federal judiciary are extended (among other things) to all cases between a state and citizens of another state — between citizens of different states — between a state or the citizens thereof and foreign states, citizens of subjects. Actions in all these cases, except against a state government, are now brought and finally determined in the law courts of the states respectively; and as there are no words to exclude these courts of their jurisdiction in these cases, they will have concurrent jurisdiction with the inferior federal courts in them." 14 The Documentary History of the Ratification of the Constitution 40 (J. Kaminski & G. Saladino, eds., 1983) (hereinafter Documentary History) (emphasis added).[23] *272 Later in the same essay, which was published and circulated in 1787 and 1788, see id., at 14-17, the author becomes even more explicit: "How far it may be proper to admit a foreigner or the citizen of another state to bring actions against state governments, which have failed in performing so many promises made during the war, is doubtful: How far it may be proper so to humble a state, as to bring it to answer to an individual in a court of law is worthy of consideration; the states are now subject to no such actions; and this new jurisdiction will subject the states, and many defendants to actions, and processes, which were not in the contemplation of the parties, when the contract was made; all engagements existing between citizens of different states, citizens and foreigners, states and foreigners; and states and citizens of other states were made the parties contemplating the remedies then existing on the laws of the states — and the new remedy proposed to be given in the federal courts, can be founded on no principle whatever." Id., at 41-42. This discussion undoubtedly presupposes that States would be parties defendant in suits on state-law causes of action under the state-citizen diversity clause; the author objects to barring sovereign immunity defenses in cases "arising upon the internal laws of the respective states." However, the anti-Federalist author plainly also believes that the powers of the federal courts are to be coextensive with the powers of Congress. Thus, the deficiency of state-citizen diversity jurisdiction is not that it permits the federal courts to hear suits against States based on federal causes of action, but that it permits the federal courts to exercise jurisdiction beyond the lawmaking powers of Congress: it provides new remedies for state creditors "which were not in the contemplation of the parties, when the contract was made." *273 Another noted anti-Federalist writer who published under the pseudonym "Brutus" also attacked what he saw as the untoward implications of the state-citizen diversity clause: "I conceive the clause which extends the power of the judicial to controversies arising between a state and citizens of another state, improper in itself, and will, in its exercise, prove most pernicious and destructive. "It is improper, because it subjects a state to answer in a court of law, to the suit of an individual. This is humiliating and degrading to a government, and, what I believe, the supreme authority of no state ever submitted to. ..... "Every state in the union is largely indebted to individuals. For the payment of these debts they have given notes payable to the bearer. At least this is the case in this state. Whenever a citizen of another state becomes possessed of one of these notes, he may commence an action in the supreme court of the general government; and I cannot see any way in which he can be prevented from recovering. ..... "If the power of the judicial under this clause will extend to the cases above stated, it will, if executed, produce the utmost confusion, and in its progress, will crush the states beneath its weight. And if it does not extend to these cases, I confess myself utterly at a loss to give it any meaning." 2 The Complete Anti-Federalist 429-431 (H. Storing ed. 1981). Other materials, from proponents and opponents of ratification, similarly view Article III jurisdiction as extending to suits against States.[24] Timothy Pickering, a Pennsylvania *274 landowner who supported ratification and attended the Pennsylvania Convention, wrote: "The federal farmer, and other objectors, say the causes between a state & citizens of another state — between citizens of different states — and between a state, or the citizens thereof, and the citizens of subjects of foreign states, should be left, as they now are, to the decision of the particular state courts. The other cases enumerated in the constitution, seem to be admitted as properly cognizable in the federal courts. With respect to all the former, it may be said generally, that as the local laws of the several states may differ from each other — as particular states may pass laws unjust in their nature, or partially unjust as they regard foreigners and the citizens of other states, it seems to be a wise provision, which puts it in the power of such foreigners & citizens to resort to a court where they may reasonably expect to obtain impartial justice. . . . But there is a particular & very cogent reason for securing to foreigners a trial, either in the first instance, or by appeal, in a federal court. With respect to foreigners, all the states form but one nation. This nation is responsible for the conduct of all its members towards foreign nations, their citizens & subjects; and therefore ought to possess the *275 power of doing justice to the latter. Without this power, a single state, or one of its citizens, might embroil the whole union in a foreign war." 14 Documentary History, at 204. Pickering's comments are particularly revealing because, unlike the previous comments, they do not focus on the problem caused by the abrogation of sovereign immunity in state-law causes of action. In fact, his views seem to be consistent with the view that a federal court adjudicating a state-law claim should apply an applicable state-law sovereign immunity defense. Pickering justifies the existence of state-citizen diversity jurisdiction in part as a remedy for state laws that are unjust or unfair to noncitizens. Such laws would, of course, implicate the interests protected by the Privileges and Immunities Clause of Article IV. His comments, like those of the "Federal Farmer," thus suggest the recognized need for a federal forum to adjudicate cases implicating the guarantees of the Federal Constitution — even those cases in which a State is the defendant. The Federalist Papers were written to influence the ratification debate in New York. In No. 81, Hamilton discussed the issue of state sovereign immunity in plain terms: "I shall take occasion to mention here, a supposition which has excited some alarm upon very mistaken grounds: It has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities. A suggestion which the following considerations prove to be without foundation. "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 *276 of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, that it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961) (emphasis in original). Hamilton believed that the States could not be held to their debts in federal court under the state-citizen diversity clause. The Court has often cited the passage as support for its view that the Constitution, even before the Eleventh Amendment, gave the federal courts no authority to hear any case, under any head of jurisdiction, in which a State was an unconsenting defendant. See, e. g., Edelman v. Jordan, 415 U. S., at 660-662, n. 9; Hans v. Louisiana, 134 U. S., at 12-13. A careful reading of this passage, however, in the context of Hamilton's views elsewhere in The Federalist, demonstrates precisely the opposite. In the cases arising under state law that would find their way into federal court under the state-citizen *277 diversity clause, a defense of state sovereign immunity would be as valid in federal court as it would be in state court. The States retained their full sovereign authority over state-created causes of action, as they did over their traditional sources of revenue. See The Federalist No. 32 (discussing taxation). On the other hand, where the Federal Government, in the "plan of the convention,"[25] had substantive lawmaking authority, the States no longer retained their full sovereignty and could be subject to suit in federal court.[26] In these areas, in which the Federal Government *278 had substantive lawmaking authority, Article III's federal-question grant of jurisdiction gave the federal courts power that extended just as far as the legislative power of Congress; as Hamilton has said in discussing the judicial power, "every government ought to possess the means of executing its own provisions by its own authority," The Federalist No. 80, p. 537 (J. Cooke ed. 1961) (emphasis in original).[27] To interpret Article III to impose an independent limit on the lawmaking power of Congress would be to turn the "plan of the convention" on its head.[28] A sober assessment of the ratification debates thus shows that there was no firm consensus concerning the extent to which the judicial power of the United States extended to suits against States. Certain opponents of ratification, like *279 Mason, Henry, and the "Federal Farmer," believed that the state-citizen diversity clause abrogated state sovereign immunity on state causes of action and predicted dire consequences as a result. On the other hand, certain proponents of the Constitution, like Pendleton, Randolph, and Pickering, agreed concerning the interpretation of Article III but believed that this constituted an argument in favor of the new Constitution. Finally, Madison, Marshall, and Hamilton believed that a State could not be made a defendant in federal court in a state-citizen diversity suit. The majority of the recorded comments on the question contravene the Court's statement in Hans, see supra, at 259, that suits against States in federal court were inconceivable.[29] Granted that most of the comments thus expressed a belief that state sovereign immunity would not be a defense to suit in federal court in state-citizen diversity cases, the question remains whether the debates evince a contemporary understanding concerning the amenability of States to suit under federal-question or other subject-matter grants of jurisdiction. Although this question received little direct attention, the debates permit some conclusions to be drawn. First, the belief that the state-citizen diversity clause abrogated state sovereign immunity in federal court implies that the federal question and admiralty clauses would have the same effect. It would be curious indeed if Article III abrogated a State's immunity on causes of action that arose under the State's own laws and over which the Federal Government had no legislative authority, but gave a State an absolute right to a sovereign immunity defense when it was charged with a violation of federal law. Second, even Hamilton, who believed that the state-citizen clause did not abrogate state sovereign immunity in federal court, also left substantial room for suits *280 against States when "the plan of the convention" required this result. Given the Supremacy Clause and the enumeration of congressional powers in Article I, "the plan of the convention" requires States to answer in federal courts for violations of duties lawfully imposed on them by Congress in the exercise of its Article I powers. Third, the repeated references by Hamilton and others to the need for the federal courts to be able to exercise jurisdiction that is as extensive as Congress' powers to legislate suggests that, if Congress had the substantive power under Article I to enact legislation providing rights of action against the States, the federal courts under Article III could be given jurisdiction to hear such cases. B After the ratification of the Constitution, Congress provided in § 13 of the First Judiciary Act, 1 Stat. 73, 80, that "the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction." The Act did not provide the federal courts with original federal-question jurisdiction, although it did in § 25 provide the Supreme Court with considerable jurisdiction over appeals in federal-question cases from state courts. Despite the controversy over the suability of the States, the provision of the Act giving the Supreme Court original jurisdiction under the state-citizen and state-alien diversity clauses surprisingly aroused little or no debate in Congress. See Fletcher, at 1053-1054.[30] *281 Those with disputes against States had no doubt that state-citizen diversity jurisdiction gave them a remedy in federal court. The first case docketed in this Court was Vanstophorst v. Maryland, 2 Dall. 401 (1791), a suit by Dutch creditors who sought judgments to recover principal and interest on Revolutionary War loans to the State of Maryland. Although a number of other cases were brought against States prior to the passage of the Eleventh Amendment,[31] the most significant of course was Chisholm v. Georgia, 2 Dall. 419 (1793). Chisholm was an action in assumpsit by a citizen of South Carolina for the price of military goods sold to Georgia in 1777.[32] The case squarely presented the question whether a State could be sued in federal court. The Court held that federal jurisdiction extended to suits against States under the state-citizen diversity clause. Each of the five sitting Justices delivered an opinion; only Justice Iredell was in dissent. Several features of Chisholm are *282 crucial to an understanding of the meaning of the Eleventh Amendment. First, two members of the Committee on Detail that had drafted Article III at the Convention were involved in the Chisholm case. Both believed that a State could be sued in federal court. Edmund Randolph, Washington's Attorney General who had previously represented the plaintiff in Vanstophorst v. Maryland, supra, represented the Chisholm plaintiff and argued strongly that a State must be amenable to suit in federal court as a result of the plain words of Article III, 2 Dall., at 421, the necessity for enforcing the constitutional prohibitions on the States, id., at 422, and the implicit consent to suit that occurred on ratification of the Constitution, id., at 423. Justice James Wilson, another of the drafters of Article III, delivered a lengthy opinion in which he urged that sovereign immunity had no proper application within the new Republic. Id., at 453-466. Second, Chisholm was not a federal-question case. Although the case involved a contract, it was brought pursuant to the state-citizen diversity clause and not directly under the Contracts Clause of the Constitution. See id., at 420 (argument of counsel).[33] The case thus squarely raised the issue whether a suit against a State based on a state-law cause of action that was not maintainable in state court could be brought in federal court pursuant to the state-citizen diversity clause. The case did not present the question whether a *283 State could be sued in federal court where the cause of action arose under federal law. Third, even Justice Iredell's dissent did not go so far as to argue that a State could never be sued in federal court. He sketched his argument as follows: "I have now, I think, established the following particulars. — 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the Legislature appointing Courts, and prescribing their methods of proceeding. 2d. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3d. That there are no principles of the old law, to which we must have recourse, that in any manner authorize the present suit, either by precedent or by analogy." Id., at 449. He thus accurately perceived that the question presented was whether Article III itself created a cause of action in federal court to displace state law where a State was being sued. Because he believed that it did not, and because he found no other source of law on which the State could be held liable in the case, he believed that the suit could not be maintained.[34] The decision in Chisholm was handed down on February 18, 1793. On February 19, a resolution was introduced in the House of Representatives stating: "[N]o State shall be liable to be made a party defendant in any of the Judicial Courts established or to be established under the authority of the United States, at the *284 suit of any person or persons, citizens or foreigners, or of any body politic or corporate whether within or without the United States." 1 C. Warren, The Supreme Court in United States History 101 (rev. ed. 1937).[35] Another resolution was introduced in the Senate on February 20. That resolution provided: "The Judicial power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 3 Annals of Cong. 651-652 (1793). Congress then recessed on March 4, 1793, without taking any action on the proposed Amendment. By the time Congress reconvened in December 1793, a suit had been brought against Massachusetts in the Supreme Court by a British Loyalist whose properties had been confiscated. Vassal v. Massachusetts.[36] Georgia had responded angrily to the decision in Chisholm, and the Massachusetts Legislature reacted to the suit against it by enacting a resolution calling for "the most speedy and effectual measures" to obtain a constitutional amendment, including a constitutional convention. Resolves of Massachusetts 28 (1793) (No. 45). Virginia followed with a similar resolution. Acts of Virginia 52 (1793). The issue had thus come to a head, and the Federalists who controlled Congress no doubt felt considerable pressure to act to avoid an open-ended constitutional convention.[37] *285 On January 2, 1794, a resolution was introduced, by a Senator whose identity is not now known, with the text of the Eleventh Amendment as it was ultimately enacted: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 4 Annals of Cong. 25 (1794) (emphasis added). This differed from the original February 20 resolution only in the addition of the three italicized words. Senator Gallatin moved to amend the resolution to add the words "except in cases arising under treaties made under the authority of the United States" after "The Judicial power of the United States." Id., at 30. After rejecting Gallatin's proposal, the Senate then rejected an amendment offered by an unknown Senator that would have forbidden suits against States only "where the cause of action shall have arisen before the ratification of this amendment." Ibid.[38] The Senate ultimately voted 23-2 in favor of the Amendment. Ibid. In the House of Representatives, there was only one attempt to amend the resolution. The amendment would have added at the end of the Senate version the following language: "[w]here such State[s] shall have previously made provision in their own Courts, whereby such suit may be prosecuted to effect." Id., at 476. This resolution, of course, would have ratified the Chisholm result that States could be sued under the state-citizen diversity clause, but would have given the States an opportunity to shift the litigation into *286 their own courts. It was rejected, 77-8, and the House proceeded to ratify the Amendment by a vote of 81-9 on March 4, 1794. Id., at 476-478. Although the chronology of ratification is somewhat unclear,[39] President Adams certified that it had been ratified four years later on January 8, 1798. Those who have argued that the Eleventh Amendment was intended to constitutionalize a broad principle of state sovereign immunity have always elided the question of why Congress would have chosen the language of the Amendment as enacted to state such a broad principle. As shown above, there was — to say the least — no consensus at the time of the Constitution's ratification as to whether the doctrine of state sovereign immunity would have any application in federal court. Even if there had been such a consensus, however, the Eleventh Amendment would represent a particularly cryptic way to embody that consensus in the Constitution. Had Congress desired to enshrine state sovereign immunity in federal courts for all cases, for instance, it could easily have adopted the first resolution introduced on February 19, 1793, in the House. Alternatively, a strong sovereign immunity principle could have been derived from an amendment that merely omitted the last 14 words of the enacted resolution. See Gibbons, at 1927. However, it does not take a particularly close reading of the Eleventh Amendment to see that it stops far short of that. Article III had provided: "The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State" and "between a State . . . and foreign . . . Citizens or Subjects." The Eleventh Amendment used the identical language in stating that the judicial power did not extend to "any suit in law or equity. . . against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State." The congruence of language suggests that the Amendment was *287 intended simply to adopt the narrow view of the state-citizen and state-alien diversity clauses; henceforth, a State could not be sued in federal court where the basis of jurisdiction was that the plaintiff was a citizen of another State or an alien.[40] It may be argued that the true intentions of the Second Congress were revealed by its use of the words "shall not be *288 construed" in the text of the Amendment. According to this argument, Congress intended not merely to qualify the statecitizen and state-alien diversity clauses, but also to establish a rule of construction barring exercise of the federal jurisdiction in any case — even one otherwise maintainable under the subject-matter heads of jurisdiction — in which a noncitizen or alien was suing a State. This view at least is consistent with the language of the Amendment, and would lead to the conclusion that suits by noncitizens or aliens against a State are never permitted, while suits by a citizen are permissible.[41] Recent scholarship, however, suggests strongly that this view is incorrect. In particular, two other explanations for the use of these terms have been advanced. Some have argued that the words were a natural means for Congress to rebuke the Supreme Court for its construction of the words "between a State and citizens of another State" in Chisholm; no longer should those words be construed to extend federal jurisdiction to suits brought under that clause in which the State was a defendant. See, e. g., Fletcher, at 1061-1062. Others have argued that the words were added to assure the retrospective application of the Eleventh Amendment. See, e. g., Jacobs, at 68-69. Of course, if the latter meaning were intended, the words had their intended effect, for the Court dismissed cases pending on its docket under the state-citizen diversity clause when the Amendment was ratified. E. g., Hollingsworth v. Virginia, 3 Dall. 378 (1798).[42] *289 The language of the Eleventh Amendment, its legislative history, and the attendant historical circumstances all strongly suggest that the Amendment was intended to remedy an interpretation of the Constitution that would have had the state-citizen and state-alien diversity clauses of Article III abrogating the state law of sovereign immunity on state-law causes of action brought in federal courts. The economy of this explanation, which accounts for the rather legalistic terms in which the Amendment and Article III were written, does not require extravagant assumptions about the unexpressed intent of Congress and the state legislatures, and is itself a strong point in its favor. The original Constitution did not embody a principle of sovereign immunity as a limit on the federal judicial power. There is simply no reason to believe that the Eleventh Amendment established such a broad principle for the first time. The historical record in fact confirms that, far from correcting the error made in Chisholm, the Court's interpretation of the Eleventh Amendment makes a similar mistake. The Chisholm Court had interpreted the state-citizen clause of Article III to work a major substantive change in state law, or at least in those cases arising under state law that found their way to federal court. The Eleventh Amendment corrected that error, and henceforth required that the party-based heads of jurisdiction in Article III be construed not to work this kind of drastic modification of state law. The Court's current interpretation of the Eleventh Amendment makes the opposite mistake, construing the Eleventh Amendment to work a major substantive change in federal law. According to the Court, the Eleventh Amendment imposes a substantive limit on the Necessary and Proper Clause of Article I, limiting the remedies that Congress may authorize for state violations of federal law. This construction suffers from the same defect as that of Chisholm: both construe the enumeration of heads of jurisdiction to impose substantive limits on lawmaking authority. *290 Article III grants a federal-question jurisdiction to the federal courts that is as broad as is the lawmaking authority of Congress. If Congress acting within its Article I or other powers creates a legal right and remedy, and if neither the right nor the remedy violates any provision of the Constitution outside Article III, then Congress may entrust adjudication of claims based on the newly created right to the federal courts — even if the defendant is a State. Neither Article III nor the Eleventh Amendment imposes an independent limit on the lawmaking authority of Congress. This view makes sense of the language, history, and purposes of Article III and of the Eleventh Amendment. It is also the view that was adopted in the earliest interpretations of the Amendment by the Marshall Court. C After the enactment of the Eleventh Amendment, the number of suits against States in the federal courts was largely curtailed. The Amendment itself had eliminated the constitutional basis for the provisions of the First Judiciary Act granting the Supreme Court original jurisdiction over suits against States by an alien or noncitizen. Because there was no general statutory grant of original federal-question jurisdiction to the federal courts,[43] suits against States would not arise under that head of jurisdiction.[44] Nonetheless, the Marshall Court did have a number of opportunities to confront the issue of state sovereign immunity. The Court's decisions reflect a consistent understanding of the limited effect of the Amendment on the structure of federal jurisdiction outside the state-citizen and state-alien diversity clauses. Because the Justices on the Marshall Court lived through the *291 ratification of the Constitution, the decision in Chisholm v. Georgia, and the subsequent enactment of the Eleventh Amendment, the Marshall Court's views on the meaning of the Amendment should take on particular importance. (1) Admiralty was perhaps the most significant head of federal jurisdiction in the early 19th century. As Hamilton noted in a much-quoted passage from the Federalist Papers: "The most bigoted idolizers of State authority have not thus far shewn a disposition to deny the national judiciary the cognizance of maritime causes." The Federalist No. 80, p. 538 (J. Cooke ed. 1961). Although few admiralty cases could be expected to arise in which the States were defendants, the Marshall Court in the few instances in which it confronted the issue showed a strong reluctance to construe the Eleventh Amendment to interfere with the admiralty jurisdiction of the federal courts. In United States v. Peters, 5 Cranch 115 (1809), the Court adjudicated a controversy over whether certain funds, proceeds of an admiralty prize sale dating from the 1770's, belonged to the Commonwealth of Pennsylvania or to a private claimant. Id., at 136-139. The Commonwealth claimed the money as the result of a state-court judgment in its favor, while the private claimant's claim was based on a judgment received from a national prize court established under the Articles of Confederation. The money claimed by the Commonwealth had been held by the State Treasurer, who had since died. Chief Justice Marshall, writing for the Court, held that the Eleventh Amendment did not interfere with the traditional common-law suit against a state official for recovery of funds held with notice of an adverse claim. According to Marshall, the suit could be maintained against the state official, even though the relief sought was a recovery of funds. Marshall carefully avoided deciding whether the Eleventh Amendment would have barred the action if it had been necessary *292 to bring it against the State itself: "If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion." Id., at 139. Nonetheless, Marshall's construction of the Eleventh Amendment by preserving the essential remedy of a money judgment that, in effect, ran against the State, left federal admiralty jurisdiction intact. Later that same year, Justice Bushrod Washington, who had sat on the Peters Court, heard a sequel to Peters that arose when the State resisted the execution of the Peters judgment. United States v. Bright, 24 F. Cas. 1232 (No. 14,647) (CC Pa. 1809). After agreeing with the Peters Court that the State Treasurer could be sued for the funds in his private capacity, he went on to note that the Eleventh Amendment in terms applies only to suits "in law or equity." Because the Framers of the Amendment did not add the words "or to cases of admiralty and maritime jurisdiction," id., at 1236, the Amendment should not be construed to extend to admiralty cases.[45] Washington thus did not read the Amendment to require a broad constitutional prohibition of suits against States in federal court. Moreover, given the importance of admiralty jurisdiction at the time, Congress' failure to include admiralty suits in the express terms of the statute was unlikely to have been an oversight. The Marshall Court again refused to hold that the Eleventh Amendment barred suits in admiralty against States in Governor of Georgia v. Madrazo, 1 Pet. 110 (1828). On appeal *293 from a Federal Circuit Court decision, a claimant alleged that he, and not the State of Georgia, was entitled to the proceeds of a prize sale. Chief Justice Marshall, writing for the Court, held that the suit was in reality a suit against the State. Although the Governor was named as defendant, there was no allegation that he had violated any federal or state law, and thus "no case is made which justifies a decree against him personally." Id., at 123. The Court then dismissed the case because the Circuit Court had no jurisdiction over it: "[I]f the 11th amendment to the Constitution, does not extend to proceedings in admiralty, it was a case for the original jurisdiction of the Supreme Court." Ibid.[46] Writing in 1833, Justice Joseph Story noted: "It has been doubted, whether this amendment extends to cases of admiralty and maritime jurisdiction, where the proceeding is in rem and not in personam. There, the jurisdiction of the court is founded upon the possession of the thing; and if the state should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides the language of the amendment is, that `the judicial power of the United States shall not be construed to extend to any suit in law or equity.' But a suit in the admiralty is not, correctly speaking, a suit in law, or in equity; but is often spoken of in contradistinction to both." 3 J. Story, Commentaries on the Constitution of the United States 560-561 (1833).[47] *294 As Justice Story pointed out, the result of the early admiralty cases was that the Eleventh Amendment was not seen as an obstacle to the exercise of otherwise legitimate federal admiralty jurisdiction. (2) Until 1875, Congress did not endow the federal courts with general federal-question jurisdiction. Nonetheless, the Supreme Court had several opportunities to decide federal-question cases against States. In some of these, suit was brought against a State in state court and an appeal was taken to the Supreme Court. If the Eleventh Amendment had constitutionalized state sovereign immunity as a limit to the Article III federal judicial power, it would have operated as a limit on both original and appellate federal-question jurisdiction, for nothing in the text or subsequent interpretations of Article III suggests that the federal judicial power extends more broadly to hear appeals than to decide original cases.[48] Although the Court has largely ignored this consequence of its constitutional sovereign immunity doctrine,[49] it was a consequence that the Marshall Court squarely faced. In Cohens v. Virginia, 6 Wheat. 264 (1821), Chief Justice Marshall addressed the question of the effect of the Eleventh Amendment on the Supreme Court's appellate jurisdiction to review a criminal conviction obtained in a Virginia state court. Counsel for the State argued that either the original *295 Constitution or the Eleventh Amendment denied the federal courts the power to hear such an appeal, in which a State was being "sued" for a writ of error in the Supreme Court. Marshall noted at the outset of his opinion for the Court that Article III provides federal jurisdiction "to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party." Id., at 378. After repeating this principle several times,[50] the Chief Justice stated: "We think, then, that as the constitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party." Id., at 405. Marshall then went on to consider the applicability of the Eleventh Amendment. After holding that a criminal defendant's petition for a writ of error is not properly understood to be a suit "commenced" or "prosecuted" by an individual against a State, Marshall stated an alternative holding: "But should we in this be mistaken, the error does not affect the case now before the Court. If this writ of *296 error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted `by a citizen of another State, or by a citizen or subject of any foreign State.' It is not then within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen that, in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties." Id., at 412.[51] Thus, the Marshall Court in Cohens squarely confronted the issue of the extent to which the Eleventh Amendment encroached on federal-question jurisdiction, and concluded that it made no encroachment at all. This result is not distinguishable on the ground that it concerned only the exercise of appellate, and not original, federal-question jurisdiction. As was made clear three years later in Osborn v. Bank of the United States, 9 Wheat. 738 (1824): "In those cases in which original jurisdiction is given to the supreme court, the judicial power of the United States cannot be exercised in its appellate form. In every other case the power is to be exercised in its original *297 or appellate form, or both, as the wisdom of congress may direct. With the exception of these cases in which original jurisdiction is given to this court, there is none to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the constitution. Original jurisdiction, so far as the constitution gives a rule, is co-extensive with the judicial power. We find in the constitution no prohibition to its exercise, in every case in which the judicial power can be exercised." Id., at 820-821. The Court continued, speaking of federal-question jurisdiction: "It would be a very bold construction to say that [the judicial] power could be applied in its appellate form only, to the most important class of cases to which it is applicable." Ibid. Osborn itself involved several important Eleventh Amendment issues. The State of Ohio had seized bank notes and specie of the Bank of the United States pursuant to a statute imposing a tax on the Bank. The statute was evidently unconstitutional under the Court's holding in McCulloch v. Maryland, 4 Wheat. 316 (1819). The Bank, which was treated as a private corporation and not a division of the Federal Government for purposes of the suit, obtained an injunction in federal court prohibiting the State from enforcing the tax and requiring the return of the seized funds. The State of Ohio appealed to the Supreme Court, relying in part on the Eleventh Amendment as a bar to the proceedings. Chief Justice Marshall's opinion for the Court carefully explains that the sovereign immunity principles of the Eleventh Amendment have no application where the State is not a party of record: "It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains *298 the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record." 9 Wheat., at 857. Technically, this principle does not address the question whether a suit may be brought against a State, but rather the question whether a suit is indeed to be understood as a suit against a State.[52] Nonetheless, it represents a narrow, technical construction of the Eleventh Amendment, and is thus of a piece with the immediately following language: "The amendment has its full effect, if the constitution be construed as it would have been construed, had the jurisdiction of the court never been extended to suits brought against a State, by the citizens of another State, or by aliens." Id., at 857-858. The restatement of the principle of Cohens demonstrates Marshall's understanding that neither Article III nor the Eleventh Amendment limits the ability of the federal courts to hear the full range of cases arising under federal law. The lack of original federal-question jurisdiction, combined with the paucity of admiralty actions against the States, deprived the Marshall Court of the opportunity to rule often on the effect of the Eleventh Amendment on state sovereign immunity in federal court. Moreover, the Court's rulings demonstrate a certain reluctance squarely to decide the extent to which the States were suable in federal court. This was perhaps a result of the Court's sensitivity to the unpopular decision in Chisholm v. Georgia, the lack of effective governmental power to enforce its decisions, and the centripetal forces that were driving the Nation toward civil war. Nonetheless, *299 a careful reading of the Marshall Court's precedents indicates that the Marshall Court consistently adopted narrow and technical readings of the Amendment's import and thus carefully retained the full measure of federal-question and admiralty jurisdiction. IV The Marshall Court's precedents, and the original understanding of the Eleventh Amendment, survived until near the end of the 19th century. In 1875, Congress gave the federal courts general original federal-question jurisdiction. 18 Stat. 470. For the first time, suits could now be brought against States in federal court based on the existence of a federal cause of action. In Hans v. Louisiana, 134 U.S. 1 (1890), a citizen of Louisiana sued his State for payment on some bonds that the state government had repudiated. The plaintiff claimed a violation of the Contracts Clause. The Court held in favor of the State and ordered the suit dismissed. Hans has been taken to stand for the proposition that the Eleventh Amendment, despite its terms, bars the federal courts from hearing federal-question suits by citizens against their own State.[53] As I have argued before, the Court's ambiguous opinion need not be interpreted in this way. See Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S., at 313-315 (BRENNAN, J., dissenting). The Hans Court relied on Justice Iredell's dissent in Chisholm, which as noted above, supra, at 283, rested on the absence of a statutory cause of action for Mr. Chisholm against the State of Georgia and reserved the question of the constitutional status of state sovereign immunity. See Hans, 134 U. S., at 18-19. The Court further noted the "presumption that *300 no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution — anomalous and unheard of when the Constitution was adopted." Id., at 18. The opinion can thus sensibly be read to have dismissed the suit before it on the ground that no federal cause of action supported the plaintiff's suit and that state-law causes of action would of course be subject to the ancient common-law doctrine of sovereign immunity. Whether the Court's departure from a sound interpretation of the Eleventh Amendment occurred in Hans or only in later cases that misread Hans, however, is relatively unimportant. If Hans is a constitutional holding, it rests by its own terms on two premises. First, the opinion cites the comments by Madison, Marshall, and Hamilton in the ratification debates. Id., at 12-14. The Court concludes that permitting suits against States would be "startling and unexpected," id., at 11, and would "strain the Constitution and the law to a construction never imagined or dreamed of." Id., at 15. The historical record outlined above demonstrates that the Court's history was plainly mistaken. Numerous individuals at the time of the Constitution's ratification believed that it would have exactly the effect the Hans Court found unimaginable. Moreover, even the comments of Madison, Marshall, and Hamilton need not be taken to advocate a constitutional doctrine of state sovereign immunity. Read literally and in context, all three were explicitly addressed to the particular problem of the state-citizen diversity clause. All three were vitally concerned with the constitutionally unauthorized displacement of the state law of creditors' rights and remedies that would be worked by an incorrect reading of the state-citizen diversity clause. All three are fully consistent with a recognition that the Constitution neither abrogated nor instituted state sovereign immunity, but rather left the ancient doctrine as it found it: a state-law defense available in state-law causes of action prosecuted in federal court. *301 Second, the opinion relies heavily on the supposedly "anomalous" result that, if the Eleventh Amendment were read literally, "in cases arising under the Constitution or laws of the United States, a State may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other States, or of a foreign state." Id., at 10. Even if such an "anomaly" existed, it would not justify judicial rewriting of the Eleventh Amendment and Article III and the wholesale disregard of precedents. But in any event a close look at the historical record reveals that the "anomaly" can easily be avoided without a general expansion of a constitutionalized sovereign immunity doctrine. The Eleventh Amendment can and should be interpreted in accordance with its original purpose to reestablish the ancient doctrine of sovereign immunity in state-law causes of action based on the state-citizen and state-alien diversity clauses; in such a state-law action, the identity of the parties is not alone sufficient to permit federal jurisdiction. If federal jurisdiction is based on the existence of a federal question or some other clause of Article III, however, the Eleventh Amendment has no relevance. There is thus no Article III limitation on otherwise proper suits against States by citizens, noncitizens, or aliens, and no "anomaly" that requires such drastic "correction." The Court has repeatedly relied on Hans as establishing a broad principle of state immunity from suit in federal court.[54] The historical record demonstrates that, if Hans was a constitutional *302 holding, it rested on misconceived history and misguided logic.[55] The doctrine that has thus been created is pernicious. In an era when sovereign immunity has been generally recognized by courts and legislatures as an anachronistic and unnecessary remnant of a feudal legal system, see, e. g., Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 57 (1944) (Frankfurter, J., dissenting); Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211, 359 P.2d 457 (1961); W. Prosser, The Law of Torts 984-987 (4th ed. 1971), the Court has aggressively expanded its scope. If this doctrine were required to enhance the liberty of our people in accordance with the Constitution's protections, I could accept it. If the doctrine were required by the structure of the federal system created by the Framers, I could accept it. Yet the current doctrine intrudes on the ideal of liberty under law by protecting the States from the consequences of their illegal conduct. And the decision obstructs the sound operation of our federal system by limiting the ability of Congress to take steps it deems necessary and proper to achieve national goals within its constitutional authority. I respectfully dissent.

If the Court's Eleventh Amendment doctrine were grounded on principles essential to the structure of our federal system or necessary to protect the cherished constitutional liberties of our people, the doctrine might be unobjectionable; the interpretation of the text of the Constitution in light of changed circumstances and unforeseen events — and with full regard for the purposes underlying the text — has always been the unique role of this Court. But the Court's *248 Eleventh Amendment doctrine diverges from text and history virtually without regard to underlying purposes or genuinely fundamental interests. In consequence, the Court has put the federal judiciary in the unseemly position of exempting the States from compliance with laws that bind every other legal actor in our Nation. Because I believe that the doctrine rests on flawed premises, misguided history, and an untenable vision of the needs of the federal system it purports to protect, I believe that the Court should take advantage of the opportunity provided by this case to reexamine the doctrine's historical and jurisprudential foundations. Such an inquiry would reveal that the Court, in Professor Shapiro's words, has taken a wrong turn.[1] Because the Court today follows this mistaken path, I respectfully dissent. I I first address the Court's holding that Congress did not succeed in abrogating the States' sovereign immunity when it enacted 504 of the Rehabilitation Act, 29 U.S. C. 94. If this holding resulted from the Court's examination of the statute and its legislative history to determine whether Congress intended in 504 to impose an obligation on the States enforceable in federal court, I would confine my dissent to the indisputable evidence to the contrary in the language and history of 504. Section 504 imposes an obligation not to discriminate against the handicapped in "any program or activity receiving Federal financial assistance." This language is general and unqualified, and contains no indication whatsoever that an exemption for the States was intended. Moreover, state governmental programs and activities are undoubtedly the recipients of a large percentage of federal funds.[2] Given this *249 widespread state dependence on federal funds, it is quite incredible to assume that Congress did not intend that the States should be fully subject to the strictures of 504. The legislative history confirms that the States were among the primary targets of 504. In introducing the predecessor of 504 as an amendment to Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d, Representative Vanik clearly indicated that governments would be among the primary targets of the legislation: "Our Governments tax [handicapped] people, their parents and relatives, but fail to provide services for them. The opportunities provided by the Government almost always exclude the handicapped." 11 Cong. Rec. 4594 (191). He further referred approvingly to a federal-court suit against the State of Pennsylvania raising the issue of educational opportunities for the handicapped. See at 4594-4595 and characterizing it as a "suit against the State"). Two months later, Representative Vanik noted the range of state actions that could disadvantage the handicapped. He said that state governments "lack funds and facilities" for medical care for handicapped children and "favor the higher income families" in tuition funding. 118 Cong. Rec. 4341 He pointed out that "the States are unable to define and deal with" the illnesses of the handicapped child, and that "[e]xclusion of handicapped children [from public schools] is illegal in some States, but the States plead lack of funds." Similarly, Senator Humphrey, the bill's sponsor in the Senate, focused particularly on a suit against a state-operated institution for the mentally retarded as demonstrating the need for the bill. See The language used in the statute ("any program or activity receiving Federal financial assistance") has long been used *250 to impose obligations on the States under other statutory schemes. For example, Title VI, enacted in 1964, bans discrimination on the basis of race, color, or national origin by "any program or activity receiving Federal financial assistance." 42 U.S. C. 2000d. Soon after its enactment, seven agencies promulgated regulations that defined a recipient of federal financial assistance to include "any State, political subdivision of any State or instrumentality of any State or political subdivision." See, e. g., 15.2(e) See generally Guardians Over 40 federal agencies and every Cabinet Department adopted similar regulations. As Senator Javits remarked in the debate on Title VI, "[w]e are primarily trying to reach units of government, not individuals." 110 Cong. Rec. 1300 Similarly Title IX of the Education Amendments of 20 U.S. C. 1681(a), prohibits discrimination on the basis of sex by "any education program or activity receiving Federal financial assistance." The regulations governing Title IX use the same definition of "recipient" — which explicitly includes the States — as do the Title VI regulations. See 34 CFR 106.2(h) (15). The Congress that enacted 504 had the examples of Titles VI and IX before it, and plainly knew that the language of the statute would include the States.[3] *251 Implementing regulations promulgated for 504 included the same definition of "recipient" that had previously been used to implement Title VI and Title IX. See 45 CFR 84.3(f) In 19, Congress held hearings on the implementation of 504, and subsequently produced amendments to the statute enacted in 198. Stat. 22, 505(a)(2), 29 U.S. C. 94a. The Senate Report accompanying the amendments explicitly approved the implementing regulations. S. Rep. No. 95-890, p. 19 (11). No Member of Congress questioned the reach of the regulations. In describing another section of the 198 amendments which brought the Federal Government within the reach of 504, Representative Jeffords noted that the section "applies 504 to the Federal Government as well as State and local recipients of Federal dollars." 124 Cong. Rec. 13901[4] Representative Sarasin emphasized that "[n]o one should discriminate against an individual because he or she suffers from a handicap — not private employers, not State and local governments, and most certainly, not the Federal Government." The 198 amendments also addressed the remedies for violations of 504: "The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S. C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 94 of this title." 29 U.S. C. 94a(a)(2). Again, the amendment referred in general and unqualified terms to "any recipient of Federal assistance." An additional *252 provision of the 198 amendments made available attorney's fees to prevailing parties in actions brought to enforce 504. Discussing these two provisions, Senator Cranston presupposed that States would be subject to suit under this section: "[W]ith respect to State and local bodies or State and local officials, attorney's fees, similar to other items of cost, would be collected from the official, in his official capacity from funds of his or her agency or under his or her control; or from the State or local government — regardless of whether such agency or Government is a named party." 124 Cong. Rec. 3034 Given the unequivocal legislative history, the Court's conclusion that Congress did not abrogate the States' sovereign immunity when it enacted 504 obviously cannot rest on an analysis of what Congress intended to do or on what Congress thought it was doing. Congress intended to impose a legal obligation on the States not to discriminate against the handicapped. In addition, Congress fully intended that whatever remedies were available against other entities — including the Federal Government itself after the 198 amendments — be equally available against the States. There is simply not a shred of evidence to the contrary. II Rather than an interpretation of the intent of Congress, the Court's decision rests on the Court's current doctrine of Eleventh Amendment sovereign immunity, which holds that "the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. " of the Constitution. Pennhurst State School and Despite the presence of the most clearly lawless behavior by the state government, the Court's doctrine holds that the judicial authority of the United States *253 does not extend to suits by an individual against a State in federal court. The Court acknowledges that the supposed lack of judicial power may be remedied, either by the State's consent,[5] or by express congressional abrogation pursuant to the Civil War Amendments, see ; City of (10), or perhaps pursuant to other congressional powers. But the Court has raised formidable obstacles to congressional efforts to abrogate the States' immunity; the Court has put in place a series of special rules of statutory draftsmanship that Congress *254 must obey before the Court will accord recognition to its act. held that Congress must make its intention "clear" if it sought to lift the States' sovereign immunity conditional on their participation in a federal program. made it still more difficult for Congress to act, stating that "we will find waiver only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction." Pennhurst State School and required "an unequivocal expression of congressional intent." Finally, the Court today tightens the noose by requiring "that Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Ante, at 243 (emphasis added). These special rules of statutory drafting are not justified (nor are they justifiable) as efforts to determine the genuine intent of Congress; no reason has been advanced why ordinary canons of statutory construction would be inadequate to ascertain the intent of Congress. Rather, the special rules are designed as hurdles to keep the disfavored suits out of the federal courts. In the Court's words, the test flows from the need to maintain "the usual constitutional balance between the States and the Federal Government." Ante, at 242.[6] The doctrine is thus based on a fundamental policy decision, vaguely attributed to the Framers of Article or the Eleventh Amendment, that the federal courts ought not to hear suits brought by individuals against States. This Court executes the policy by making it difficult, but not impossible, *255 for Congress to create private rights of action against the States.[] Reliance on this supposed constitutional policy reverses the ordinary role of the federal courts in federal-question cases. Federal courts are instruments of the National Government, seeing to it that constitutional limitations are obeyed while interpreting the will of Congress in enforcing the federal laws. In the Eleventh Amendment context, however, the Court instead relies on a supposed constitutional policy disfavoring suits against States as justification for ignoring the will of Congress; the goal seems to be to obstruct the ability of Congress to achieve ends that are otherwise constitutionally unexceptionable and well within the reach of its Article I powers. The Court's sovereign immunity doctrine has other unfortunate results. Because the doctrine is inconsistent with the *256 essential function of the federal courts — to provide a fair and impartial forum for the uniform interpretation and enforcement of the supreme law of the land — it has led to the development of a complex body of technical rules made necessary by the need to circumvent the intolerable constriction of federal jurisdiction that would otherwise occur. Under the rule of Ex parte Young, a State may be required to obey federal law, so long as the plaintiff remembers to name a state official rather than the State itself as defendant, see and so long as the relief sought is prospective rather than retrospective.[8] These intricate rules often create manifest injustices while failing to respond to any legitimate needs of the States. A damages award may often be the only practical remedy available to the plaintiff,[9] and the threat of a damages award may be the only effective *25 deterrent to a defendant's willful violation of federal law. Cf. While the prohibition of damages awards thus imposes substantial costs on plaintiffs and on members of a class Congress sought to protect, the injunctive relief that s permitted can often be more intrusive — and more expensive — than a simple damages award would be.[10] The Court's doctrine itself has been unstable. As I shall discuss below, the doctrine lacks a textual anchor, a firm historical foundation, or a clear rationale. As a result, it has been impossible to determine to what extent the principle of state accountability to the rule of law can or should be accommodated within the competing framework of state nonaccountability put into place by the Court's sovereign immunity doctrine. For this reason, we have been unable to agree on the content of the special "rules" we have applied to Acts of Congress to determine whether they abrogate state sovereign immunity. Compare with Whatever rule is decided upon at a given time is then applied retroactively to actions taken by Congress. See n. Finally, in the absence of any plausible *258 limiting principles, the Court has overruled and ignored past cases that seemed to stand in the way of vindication of the doubtful States' right the Court has created. See Pennhurst State School and -166, n. 50. I might tolerate all of these results — the unprecedented intrusion on Congress' lawmaking power and consequent increase in the power of the courts, the development of a complex set of rules to circumvent the obviously untenable results that would otherwise ensue, the lack of respect for precedent and the lessons of the past evident in Pennhurst — if the Court's sovereign immunity doctrine derived from essential constitutional values protecting the freedom of our people or the structure of our federal system. But that is sadly not the case. Instead, the paradoxical effect of the Court's doctrine is to require the federal courts to protect States that violate federal law from the legal consequences of their conduct. Since the Court began over a decade ago aggressively to expand its doctrine of Eleventh Amendment sovereign immunity, see modern scholars and legal historians have taken a critical look at the historical record that is said to support the Court's result.[11] Recent research has discovered *259 and collated substantial evidence that the Court's constitutional doctrine of state sovereign immunity has rested on a mistaken historical premise. The flawed underpinning is the premise that either the Constitution or the Eleventh Amendment embodied a principle of state sovereign immunity as a limit on the federal judicial power. New evidence concerning the drafting and ratification of the original Constitution indicates that the Framers never intended to constitutionalize the doctrine of state sovereign immunity. Consequently, the Eleventh Amendment could not have been, as the Court has occasionally suggested, an effort to reestablish a limitation on the federal judicial power granted in Article Nor, given the limited terms in which it was written, could the Amendment's narrow and technical language be understood to have instituted a sweeping new limitation on the federal judicial power whenever an individual attempts to sue a State. A close examination of the historical records reveals a rather different status for the doctrine of state sovereign immunity in federal court. There simply is no constitutional principle of state sovereign immunity, and no constitutionally mandated policy of excluding suits against States from federal court. A In the Court stated that to permit a citizen to bring a suit against a State in federal court would be "an attempt to strain the Constitution and the law to a construction never imagined or dreamed of." The text of the Constitution, of course, contains no explicit adoption of a principle of state sovereign immunity. The passage from thus implies that everyone involved in the framing or ratification of the Constitution believed *260 that Article included a tacit prohibition on the exercise of the judicial power when a State was being sued in federal court. The early history of the Constitution reveals, however, that the Court in was mistaken. The unamended Article was often read to the contrary to prohibit not the exercise of the judicial power, but the assertion of state sovereign immunity as a defense, even in cases arising solely under state law. It is useful to begin with the text of Article Section 2 provides: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States, — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." The judicial power of the federal courts thus extends only to certain types of cases, identified either by subject matter or parties. The subject-matter heads of jurisdiction include federal questions ("all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made") and admiralty ("all Cases of admiralty and maritime Jurisdiction"). The party-based heads of jurisdiction include what might be called ordinary diversity ("Controversies. between Citizens of different States"), state-citizen diversity ("between a State and Citizens of another State"), and state-alien diversity ("between a State and foreign Citizens"). It is the latter two clauses, providing for state-citizen and state-alien diversity, that were *261 at the focus of the Court's decision in (193), and the subsequent ratification of the Eleventh Amendment. To understand the dispute concerning the state-citizen and state-alien diversity clauses, it is crucial to understand the relationship between the party-based and subject-matter heads of jurisdiction. The grants of jurisdiction in Article are to be read disjunctively. The federal judicial power may extend to a case if it falls within any of the enumerated jurisdictional heads. Thus, a federal court can hear a federal-question case even if the parties are citizens of the same state; it can exercise jurisdiction over cases between citizens of different states even where the case does not arise under federal law. Most important for present purposes, the language of the unamended Article alone would permit the federal courts to exercise jurisdiction over suits in which a noncitizen or alien is suing a State on a claim of a violation of state law. This standard interpretation of Article gave a special importance to the interpretation of the state-citizen and state-alien diversity clauses. The clauses by their terms permitted federal jurisdiction over any suit between a State and a noncitizen or a State and an alien, and in particular over suits in which the plaintiff was the noncitizen or alien and the defendant was the State. Yet in most of the States in 189, the doctrine of sovereign immunity formally forbade the maintenance of suits against States in state courts, although the actual effect of this bar in frustrating legal claims against the State was unclear.[12] Thus, the question left open by the terms of the two clauses was whether the state law of *262 sovereign immunity barred the exercise of the federal judicial power. A plaintiff seeking federal jurisdiction against a State under the state-citizen or state-alien diversity clauses would be asserting a cause of action based on state law, since a federal question or admiralty claim would provide an independent basis for jurisdiction that did not depend on the identity of the parties. To read the two clauses to abrogate the state-law sovereign immunity defense would be to find in Article a substantive federal limitation on state law. Although a State previously could create a cause of action to which it would not itself be liable, this same cause of action now could be used (at least by citizens of other States or aliens) in federal courts to sue the State itself. This was a particularly troublesome prospect to the States that had incurred debts, some of which dated back to the Revolutionary War. The debts would naturally find their way into the hands of noncitizens and aliens, who at the first sign of default could be expected promptly to sue the State in federal court. The State's effort to retain its sovereign immunity in its own courts would turn out to be futile. Moreover, the resulting abrogation of sovereign immunity would operate retroactively; even debts incurred years before the Constitution was adopted — and before either of the contracting parties expected that a judicial remedy against the State would be available — would become the basis for causes of action brought under the two clauses in federal court. In short, the danger of the state-citizen and state-alien diversity clauses was that, if read to permit suits against States, they would have the effect of limiting state law in a way not otherwise provided for in the Constitution. The original Constitution prior to the Bill of Rights contained only a few express limitations on state power. Yet the States would now find in Article itself a further limit on state action: Despite the fact that the State as sovereign had created a given cause of action, Article would have made it impossible *263 for the State effectively to assert a sovereign immunity defense to that action. The records of the Constitutional Convention do not reveal any substantial controversy concerning the state-citizen and state-alien diversity clauses.[13] The language of Article[14] which provides one guide to its meaning, is undoubtedly consistent with suits against States under both subject-matter heads of jurisdiction (for example, a suit arising out of federal law brought by a citizen against a State) and party-based heads of jurisdiction (for example, a suit brought under the state-citizen diversity clause itself). However, a federal-question suit against a State does not threaten to displace a prior state-law defense of sovereign immunity, because state-law defenses would not of their own force be applicable to federal causes of action. On the other hand, a state-citizen suit against a State does, as suggested threaten to displace any extant state-law sovereign immunity defense. An examination of the debates surrounding the state ratification conventions proves more productive. The various *264 references to state sovereign immunity all appear in discussions of the state-citizen diversity clause. Virtually all of the comments were addressed to the problem created by state debts that predated the Constitution, when the State's creditors may often have had meager judicial remedies in the case of default. Yet, even in this sensitive context, a number of participants in the debates welcomes the abrogation of sovereign immunity that they thought followed from the state-citizen and state-alien clauses. The debates do not directly address the question of suits against States in admiralty or federal-question cases, where federal law and not state law would govern. Nonetheless, the apparent willingness of many delegates to read the state-citizen clause as abrogating sovereign immunity in state-law causes of action suggests that they would have been even more willing to permit suits against States in federal-question cases, where Congress had authorized such suits in the exercise of its Article I or other powers. The Virginia debates included the most detailed discussion of the state-citizen diversity clause.[15] The first to mention the clause explicitly was George Mason, an opponent of the new Constitution. After quoting the clause, he referred to a *265 dispute about Virginia's confiscation of property belonging to Lord Fairfax.[16] He asserted: "Claims respecting those lands, every liquidated account, or other claim against this state, will be tried before the federal court. Is not this disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender? Will the states undergo this mortification? I think this power perfectly unnecessary. But let us pursue this subject farther. What is to be done if a judgment be obtained against a state? Will you issue a fieri facias? It would be ludicrous to say that you could put the state's body in jail. How is the judgment, then, to be enforced? A power which cannot be executed ought not to be granted." 3 Elliot's Debates, at 526-52. Mason thus believed that the state-citizen diversity clause provided federal jurisdiction for suits against the States and would have the effect of abrogating the State's sovereign immunity defense in state-law causes of action for debt that would be brought in federal court. Madison responded the next day: "[Federal] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The 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. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts." *266 Madison seems to have believed that the Article judicial power, at least under the state-citizen diversity clause, was limited to cases in which the States were plaintiffs. Although he does deny that "[i]t is in the power of individuals to call any State into court," this remark could be understood as an explication of current state law which he believed would not be displaced by the state-citizen diversity clause. His remarks certainly do not suggest that Congress, acting under its enumerated powers elsewhere in the Constitution, could not "call a state into court," or, again acting within its own granted powers, provide a citizen with the power to sue a State in federal court. At any rate, the delegates were not wholly satisfied with Madison's explanation. Patrick Henry, an opponent of ratification, was the next speaker. Referring to Mason, he said: "My honorable friend's remarks were right, with respect to incarcerating a state. It would ease my mind, if the honorable gentleman would tell me the manner in which money should be paid, if, in a suit between a state and individuals, the state were cast." Returning to the attack on Madison, Henry had no doubt concerning the meaning of the state-citizen diversity clause: "As to controversies between a state and the citizens of another state, his construction of it is to me perfectly incomprehensible. He says it will seldom happen that a state has such demands on individuals. There is nothing to warrant such an assertion. But he says that the state may be plaintiff only. If gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant. What says the honorable gentleman? The contrary — that the state can only be plaintiff. When the state is debtor, there is no reciprocity. It seems to me that *26 gentlemen may put what construction they please on it. What! is justice to be done to one party, and not to the other?" Edmund Pendleton, the President of the Virginia Convention and the next speaker, supported ratification but seems to have agreed with Henry that the state-citizen diversity clause would subject the States to suit in federal court. He said that "[t]he impossibility of calling a sovereign state before the jurisdiction of another sovereign state, shows the propriety and necessity of vesting this tribunal with the decision of controversies to which a state shall be a party." John Marshall next took up the debate: "With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. 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. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be a partiality in it if a state cannot be defendant — if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular state, is it to be presumed that, on application to its legislature, he will not obtain satisfaction? But how could a state recover any claim from a citizen of another *268 state, without the establishment of these tribunals?" Marshall's remarks, like Madison's, appear to suggest that the state-citizen diversity clause could not be used to make an unwilling State a defendant in federal court. The reason seems to be that "it is not rational to suppose that the sovereign power should be dragged before a court." Of course, where the cause of action is based on state law, as it would be in a suit under the state-citizen diversity clause, the "sovereign power" whose law governed would be the State, and Marshall is consequently correct that it would be "irrational" to suppose that the sovereign could be forced to abrogate the sovereign immunity defense that its own law had created. However, where the cause of action is based on a federal law enacted pursuant to Congress' Article I powers, it would be far less clear that Marshall would have concluded that the State still retained the relevant "sovereignty"; in such a case, there is nothing "irrational" about supposing that the relevant sovereign — in this case, Congress — had subjected the State to suit.[1] Marshall's observations did not go unanswered. Edmund Randolph, a member of the Committee of Detail at the Constitutional Convention and a proponent of the Constitution, referred back to Mason's remarks: "An honorable gentleman has asked, Will you put the body of the state in prison? How is it between independent states? If a government refuses to do justice to individuals, war is the consequence. Is this the bloody alternative to which we are referred. I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not *269 defendant, is taken away by the words where a state shall be a party." at 53. Randolph was convinced that a State could be made a party defendant. Discussing some disputed land claims, he remarked: "One thing is certain — that the remedy will not be sought against the settlers, but the state of Virginia. The court of equity will direct a compensation to be made by the state." at 54. Finally, he concluded his discussion: "I ask the Convention of the free people of Virginia if there can be honesty in rejecting the government because justice is to be done by it? Are we to say that we shall discard this government because it would make us all honest?" at 55.[18] One of the purposes of Article was to vest in the federal courts the power to settle disputes that might threaten the peace and unity of the Nation.[19] Randolph saw the danger of just this kind of internecine strife when a State reneges on debts owed to citizens of another State, and consequently applauded the extension of federal jurisdiction to avoid these consequences. The Virginia Convention ratified the Constitution. The Madison and Marshall remarks have been cited as evidence of an inherent limitation on Article jurisdiction. See, e. g., n. 9; ; Even if this adequately characterized the substance of their views, they were a minority of those given at the Convention. Mason, Henry, Pendleton, and Randolph *20 all took an opposing position.[20] Equally important, the entire discussion focused on the question of Virginia's liability for debts and land claims that predated the Constitution and clearly arose under Virginia law. The question that excited such interest was whether the state-citizen diversity clause itself abrogated the sovereign immunity defense that would be available to the State in a suit concerning these issues in state court.[21] The same issue arose in a few other state conventions, but did not receive the detailed attention that it did in Virginia.[22] *21 The debate in the press sheds further light on the effect of the Constitution on state sovereign immunity. A number of influential anti-Federalist publications sounded the alarm at what they saw as the unwarranted extension of the federal judicial power worked by the state-citizen diversity clause. The "Federal Farmer," commonly identified as Richard Henry Lee of Virginia, was one influential and widely published anti-Federalist. He objected: "There are some powers proposed to be lodged in the general government in the judicial department, I think very unnecessarily, I mean powers respecting questions arising upon the internal laws of the respective states. It is proper the federal judiciary should have powers co-extensive with the federal legislature — that is, the power of deciding finally on the laws of the union. By Art. 3. Sect. 2. the powers of the federal judiciary are extended (among other things) to all cases between a state and citizens of another state — between citizens of different states — between a state or the citizens thereof and foreign states, citizens of subjects. Actions in all these cases, except against a state government, are now brought and finally determined in the law courts of the states respectively; and as there are no words to exclude these courts of their jurisdiction in these cases, they will have concurrent jurisdiction with the inferior federal courts in them." 14 The Documentary History of the Ratification of the Constitution 40 (hereinafter Documentary History) (emphasis added).[23] *22 Later in the same essay, which was published and circulated in 18 and 188, see at 14-1, the author becomes even more explicit: "How far it may be proper to admit a foreigner or the citizen of another state to bring actions against state governments, which have failed in performing so many promises made during the war, is doubtful: How far it may be proper so to humble a state, as to bring it to answer to an individual in a court of law is worthy of consideration; the states are now subject to no such actions; and this new jurisdiction will subject the states, and many defendants to actions, and processes, which were not in the contemplation of the parties, when the contract was made; all engagements existing between citizens of different states, citizens and foreigners, states and foreigners; and states and citizens of other states were made the parties contemplating the remedies then existing on the laws of the states — and the new remedy proposed to be given in the federal courts, can be founded on no principle whatever." This discussion undoubtedly presupposes that States would be parties defendant in suits on state-law causes of action under the state-citizen diversity clause; the author objects to barring sovereign immunity defenses in cases "arising upon the internal laws of the respective states." However, the anti-Federalist author plainly also believes that the powers of the federal courts are to be coextensive with the powers of Congress. Thus, the deficiency of state-citizen diversity jurisdiction is not that it permits the federal courts to hear suits against States based on federal causes of action, but that it permits the federal courts to exercise jurisdiction beyond the lawmaking powers of Congress: it provides new remedies for state creditors "which were not in the contemplation of the parties, when the contract was made." *23 Another noted anti-Federalist writer who published under the pseudonym "Brutus" also attacked what he saw as the untoward implications of the state-citizen diversity clause: "I conceive the clause which extends the power of the judicial to controversies arising between a state and citizens of another state, improper in itself, and will, in its exercise, prove most pernicious and destructive. "It is improper, because it subjects a state to answer in a court of law, to the suit of an individual. This is humiliating and degrading to a government, and, what I believe, the supreme authority of no state ever submitted to. "Every state in the union is largely indebted to individuals. For the payment of these debts they have given notes payable to the bearer. At least this is the case in this state. Whenever a citizen of another state becomes possessed of one of these notes, he may commence an action in the supreme court of the general government; and I cannot see any way in which he can be prevented from recovering. "If the power of the judicial under this clause will extend to the cases stated, it will, if executed, produce the utmost confusion, and in its progress, will crush the states beneath its weight. And if it does not extend to these cases, I confess myself utterly at a loss to give it any meaning." 2 The Complete Anti-Federalist 429-431 (H. Storing ed. 11). Other materials, from proponents and opponents of ratification, similarly view Article jurisdiction as extending to suits against States.[24] Timothy Pickering, a Pennsylvania *24 landowner who supported ratification and attended the Pennsylvania Convention, wrote: "The federal farmer, and other objectors, say the causes between a state & citizens of another state — between citizens of different states — and between a state, or the citizens thereof, and the citizens of subjects of foreign states, should be left, as they now are, to the decision of the particular state courts. The other cases enumerated in the constitution, seem to be admitted as properly cognizable in the federal courts. With respect to all the former, it may be said generally, that as the local laws of the several states may differ from each other — as particular states may pass laws unjust in their nature, or partially unjust as they regard foreigners and the citizens of other states, it seems to be a wise provision, which puts it in the power of such foreigners & citizens to resort to a court where they may reasonably expect to obtain impartial justice. But there is a particular & very cogent reason for securing to foreigners a trial, either in the first instance, or by appeal, in a federal court. With respect to foreigners, all the states form but one nation. This nation is responsible for the conduct of all its members towards foreign nations, their citizens & subjects; and therefore ought to possess the *25 power of doing justice to the latter. Without this power, a single state, or one of its citizens, might embroil the whole union in a foreign war." 14 Documentary History, at 204. Pickering's comments are particularly revealing because, unlike the previous comments, they do not focus on the problem caused by the abrogation of sovereign immunity in state-law causes of action. In fact, his views seem to be consistent with the view that a federal court adjudicating a state-law claim should apply an applicable state-law sovereign immunity defense. Pickering justifies the existence of state-citizen diversity jurisdiction in part as a remedy for state laws that are unjust or unfair to noncitizens. Such laws would, of course, implicate the interests protected by the Privileges and Immunities Clause of Article IV. His comments, like those of the "Federal Farmer," thus suggest the recognized need for a federal forum to adjudicate cases implicating the guarantees of the Federal Constitution — even those cases in which a State is the defendant. The Federalist Papers were written to influence the ratification debate in New York. In No. 81, Hamilton discussed the issue of state sovereign immunity in plain terms: "I shall take occasion to mention here, a supposition which has excited some alarm upon very mistaken grounds: It has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities. A suggestion which the following considerations prove to be without foundation. "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 *26 of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, that it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable." The Federalist No. 81, pp. 548-549 (emphasis in original). Hamilton believed that the States could not be held to their debts in federal court under the state-citizen diversity clause. The Court has often cited the passage as support for its view that the Constitution, even before the Eleventh Amendment, gave the federal courts no authority to hear any case, under any head of jurisdiction, in which a State was an unconsenting defendant. See, e. g., -662, n. 9; -13. A careful reading of this passage, however, in the context of Hamilton's views elsewhere in The Federalist, demonstrates precisely the opposite. In the cases arising under state law that would find their way into federal court under the state-citizen *2 diversity clause, a defense of state sovereign immunity would be as valid in federal court as it would be in state court. The States retained their full sovereign authority over state-created causes of action, as they did over their traditional sources of revenue. See The Federalist No. 32 (discussing taxation). On the other hand, where the Federal Government, in the "plan of the convention,"[25] had substantive lawmaking authority, the States no longer retained their full sovereignty and could be subject to suit in federal court.[26] In these areas, in which the Federal Government *28 had substantive lawmaking authority, Article 's federal-question grant of jurisdiction gave the federal courts power that extended just as far as the legislative power of Congress; as Hamilton has said in discussing the judicial power, "every government ought to possess the means of executing its own provisions by its own authority," The Federalist No. 80, p. 53 (emphasis in original).[2] To interpret Article to impose an independent limit on the lawmaking power of Congress would be to turn the "plan of the convention" on its head.[28] A sober assessment of the ratification debates thus shows that there was no firm consensus concerning the extent to which the judicial power of the United States extended to suits against States. Certain opponents of ratification, like *29 Mason, Henry, and the "Federal Farmer," believed that the state-citizen diversity clause abrogated state sovereign immunity on state causes of action and predicted dire consequences as a result. On the other hand, certain proponents of the Constitution, like Pendleton, Randolph, and Pickering, agreed concerning the interpretation of Article but believed that this constituted an argument in favor of the new Constitution. Finally, Madison, Marshall, and Hamilton believed that a State could not be made a defendant in federal court in a state-citizen diversity suit. The majority of the recorded comments on the question contravene the Court's statement in see that suits against States in federal court were inconceivable.[29] Granted that most of the comments thus expressed a belief that state sovereign immunity would not be a defense to suit in federal court in state-citizen diversity cases, the question remains whether the debates evince a contemporary understanding concerning the amenability of States to suit under federal-question or other subject-matter grants of jurisdiction. Although this question received little direct attention, the debates permit some conclusions to be drawn. First, the belief that the state-citizen diversity clause abrogated state sovereign immunity in federal court implies that the federal question and admiralty clauses would have the same effect. It would be curious indeed if Article abrogated a State's immunity on causes of action that arose under the State's own laws and over which the Federal Government had no legislative authority, but gave a State an absolute right to a sovereign immunity defense when it was charged with a violation of federal law. Second, even Hamilton, who believed that the state-citizen clause did not abrogate state sovereign immunity in federal court, also left substantial room for suits *280 against States when "the plan of the convention" required this result. Given the Supremacy Clause and the enumeration of congressional powers in Article I, "the plan of the convention" requires States to answer in federal courts for violations of duties lawfully imposed on them by Congress in the exercise of its Article I powers. Third, the repeated references by Hamilton and others to the need for the federal courts to be able to exercise jurisdiction that is as extensive as Congress' powers to legislate suggests that, if Congress had the substantive power under Article I to enact legislation providing rights of action against the States, the federal courts under Article could be given jurisdiction to hear such cases. B After the ratification of the Constitution, Congress provided in 13 of the First Judiciary Act, 1 Stat. 3, 80, that "the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction." The Act did not provide the federal courts with original federal-question jurisdiction, although it did in 25 provide the Supreme Court with considerable jurisdiction over appeals in federal-question cases from state courts. Despite the controversy over the suability of the States, the provision of the Act giving the Supreme Court original jurisdiction under the state-citizen and state-alien diversity clauses surprisingly aroused little or no debate in Congress. See Fletcher, 53-1054.[30] *281 Those with disputes against States had no doubt that state-citizen diversity jurisdiction gave them a remedy in federal court. The first case docketed in this Court was (191), a suit by Dutch creditors who sought judgments to recover principal and interest on Revolutionary War loans to the State of Although a number of other cases were brought against States prior to the passage of the Eleventh Amendment,[31] the most significant of course was (193). Chisholm was an action in assumpsit by a citizen of South Carolina for the price of military goods sold to Georgia in 1.[32] The case squarely presented the question whether a State could be sued in federal court. The Court held that federal jurisdiction extended to suits against States under the state-citizen diversity clause. Each of the five sitting Justices delivered an opinion; only Justice Iredell was in dissent. Several features of Chisholm are *282 crucial to an understanding of the meaning of the Eleventh Amendment. First, two members of the Committee on Detail that had drafted Article at the Convention were involved in the Chisholm case. Both believed that a State could be sued in federal court. Edmund Randolph, Washington's Attorney General who had previously represented the plaintiff in represented the Chisholm plaintiff and argued strongly that a State must be amenable to suit in federal court as a result of the plain words of Article the necessity for enforcing the constitutional prohibitions on the States, and the implicit consent to suit that occurred on ratification of the Constitution, Justice James Wilson, another of the drafters of Article delivered a lengthy opinion in which he urged that sovereign immunity had no proper application within the new Republic. Second, Chisholm was not a federal-question case. Although the case involved a contract, it was brought pursuant to the state-citizen diversity clause and not directly under the Contracts Clause of the Constitution. See[33] The case thus squarely raised the issue whether a suit against a State based on a state-law cause of action that was not maintainable in state court could be brought in federal court pursuant to the state-citizen diversity clause. The case did not present the question whether a *283 State could be sued in federal court where the cause of action arose under federal law. Third, even Justice Iredell's dissent did not go so far as to argue that a State could never be sued in federal court. He sketched his argument as follows: "I have now, I think, established the following particulars. — 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the Legislature appointing Courts, and prescribing their methods of proceeding. 2d. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3d. That there are no principles of the old law, to which we must have recourse, that in any manner authorize the present suit, either by precedent or by analogy." He thus accurately perceived that the question presented was whether Article itself created a cause of action in federal court to displace state law where a State was being sued. Because he believed that it did not, and because he found no other source of law on which the State could be held liable in the case, he believed that the suit could not be maintained.[34] The decision in Chisholm was handed down on February 18, 193. On February 19, a resolution was introduced in the House of Representatives stating: "[N]o State shall be liable to be made a party defendant in any of the Judicial Courts established or to be established under the authority of the United States, at the *284 suit of any person or persons, citizens or foreigners, or of any body politic or corporate whether within or without the United States." 1 C. Warren, The Supreme Court in United States History 101 (rev. ed. 193).[35] Another resolution was introduced in the Senate on February 20. That resolution provided: "The Judicial power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 3 Annals of Cong. 651-652 (193). Congress then recessed on March 4, 193, without taking any action on the proposed Amendment. By the time Congress reconvened in December 193, a suit had been brought against Massachusetts in the Supreme Court by a British Loyalist whose properties had been confiscated. Vassal v. Massachusetts.[36] Georgia had responded angrily to the decision in Chisholm, and the Massachusetts Legislature reacted to the suit against it by enacting a resolution calling for "the most speedy and effectual measures" to obtain a constitutional amendment, including a constitutional convention. Resolves of Massachusetts 28 (193) (No. 45). Virginia followed with a similar resolution. Acts of Virginia 52 (193). The issue had thus come to a head, and the Federalists who controlled Congress no doubt felt considerable pressure to act to avoid an open-ended constitutional convention.[3] *285 On January 2, 194, a resolution was introduced, by a Senator whose identity is not now known, with the text of the Eleventh Amendment as it was ultimately enacted: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 4 Annals of Cong. 25 (194) (emphasis added). This differed from the original February 20 resolution only in the addition of the three italicized words. Senator Gallatin moved to amend the resolution to add the words "except in cases arising under treaties made under the authority of the United States" after "The Judicial power of the United States." After rejecting Gallatin's proposal, the Senate then rejected an amendment offered by an unknown Senator that would have forbidden suits against States only "where the cause of action shall have arisen before the ratification of this amendment." [38] The Senate ultimately voted 23-2 in favor of the Amendment. In the House of Representatives, there was only one attempt to amend the resolution. The amendment would have added at the end of the Senate version the following language: "[w]here such State[s] shall have previously made provision in their own Courts, whereby such suit may be prosecuted to effect." at 46. This resolution, of course, would have ratified the Chisholm result that States could be sued under the state-citizen diversity clause, but would have given the States an opportunity to shift the litigation into *286 their own courts. It was rejected, -8, and the House proceeded to ratify the Amendment by a vote of 81-9 on March 4, 194. at 46-48. Although the chronology of ratification is somewhat unclear,[39] President Adams certified that it had been ratified four years later on January 8, 1. Those who have argued that the Eleventh Amendment was intended to constitutionalize a broad principle of state sovereign immunity have always elided the question of why Congress would have chosen the language of the Amendment as enacted to state such a broad principle. As shown there was — to say the least — no consensus at the time of the Constitution's ratification as to whether the doctrine of state sovereign immunity would have any application in federal court. Even if there had been such a consensus, however, the Eleventh Amendment would represent a particularly cryptic way to embody that consensus in the Constitution. Had Congress desired to enshrine state sovereign immunity in federal courts for all cases, for instance, it could easily have adopted the first resolution introduced on February 19, 193, in the House. Alternatively, a strong sovereign immunity principle could have been derived from an amendment that merely omitted the last 14 words of the enacted resolution. See Gibbons, at 192. However, it does not take a particularly close reading of the Eleventh Amendment to see that it stops far short of that. Article had provided: "The judicial Power shall extend to Controversies between a State and Citizens of another State" and "between a State and foreign Citizens or Subjects." The Eleventh Amendment used the identical language in stating that the judicial power did not extend to "any suit in law or equity. against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State." The congruence of language suggests that the Amendment was *28 intended simply to adopt the narrow view of the state-citizen and state-alien diversity clauses; henceforth, a State could not be sued in federal court where the basis of jurisdiction was that the plaintiff was a citizen of another State or an alien.[40] It may be argued that the true intentions of the Second Congress were revealed by its use of the words "shall not be *288 construed" in the text of the Amendment. According to this argument, Congress intended not merely to qualify the statecitizen and state-alien diversity clauses, but also to establish a rule of construction barring exercise of the federal jurisdiction in any case — even one otherwise maintainable under the subject-matter heads of jurisdiction — in which a noncitizen or alien was suing a State. This view at least is consistent with the language of the Amendment, and would lead to the conclusion that suits by noncitizens or aliens against a State are never permitted, while suits by a citizen are permissible.[41] Recent scholarship, however, suggests strongly that this view is incorrect. In particular, two other explanations for the use of these terms have been advanced. Some have argued that the words were a natural means for Congress to rebuke the Supreme Court for its construction of the words "between a State and citizens of another State" in Chisholm; no longer should those words be construed to extend federal jurisdiction to suits brought under that clause in which the State was a defendant. See, e. g., Fletcher, 61-1062. Others have argued that the words were added to assure the retrospective application of the Eleventh Amendment. See, e. g., Jacobs, at 68-69. Of course, if the latter meaning were intended, the words had their intended effect, for the Court dismissed cases pending on its docket under the state-citizen diversity clause when the Amendment was ratified. E. g., 3 Dall. 38 (1).[42] *289 The language of the Eleventh Amendment, its legislative history, and the attendant historical circumstances all strongly suggest that the Amendment was intended to remedy an interpretation of the Constitution that would have had the state-citizen and state-alien diversity clauses of Article abrogating the state law of sovereign immunity on state-law causes of action brought in federal courts. The economy of this explanation, which accounts for the rather legalistic terms in which the Amendment and Article were written, does not require extravagant assumptions about the unexpressed intent of Congress and the state legislatures, and is itself a strong point in its favor. The original Constitution did not embody a principle of sovereign immunity as a limit on the federal judicial power. There is simply no reason to believe that the Eleventh Amendment established such a broad principle for the first time. The historical record in fact confirms that, far from correcting the error made in Chisholm, the Court's interpretation of the Eleventh Amendment makes a similar mistake. The Chisholm Court had interpreted the state-citizen clause of Article to work a major substantive change in state law, or at least in those cases arising under state law that found their way to federal court. The Eleventh Amendment corrected that error, and henceforth required that the party-based heads of jurisdiction in Article be construed not to work this kind of drastic modification of state law. The Court's current interpretation of the Eleventh Amendment makes the opposite mistake, construing the Eleventh Amendment to work a major substantive change in federal law. According to the Court, the Eleventh Amendment imposes a substantive limit on the Necessary and Proper Clause of Article I, limiting the remedies that Congress may authorize for state violations of federal law. This construction suffers from the same defect as that of Chisholm: both construe the enumeration of heads of jurisdiction to impose substantive limits on lawmaking authority. *290 Article grants a federal-question jurisdiction to the federal courts that is as broad as is the lawmaking authority of Congress. If Congress acting within its Article I or other powers creates a legal right and remedy, and if neither the right nor the remedy violates any provision of the Constitution outside Article then Congress may entrust adjudication of claims based on the newly created right to the federal courts — even if the defendant is a State. Neither Article nor the Eleventh Amendment imposes an independent limit on the lawmaking authority of Congress. This view makes sense of the language, history, and purposes of Article and of the Eleventh Amendment. It is also the view that was adopted in the earliest interpretations of the Amendment by the Marshall Court. C After the enactment of the Eleventh Amendment, the number of suits against States in the federal courts was largely curtailed. The Amendment itself had eliminated the constitutional basis for the provisions of the First Judiciary Act granting the Supreme Court original jurisdiction over suits against States by an alien or noncitizen. Because there was no general statutory grant of original federal-question jurisdiction to the federal courts,[43] suits against States would not arise under that head of jurisdiction.[44] Nonetheless, the Marshall Court did have a number of opportunities to confront the issue of state sovereign immunity. The Court's decisions reflect a consistent understanding of the limited effect of the Amendment on the structure of federal jurisdiction outside the state-citizen and state-alien diversity clauses. Because the Justices on the Marshall Court lived through the *291 ratification of the Constitution, the decision in and the subsequent enactment of the Eleventh Amendment, the Marshall Court's views on the meaning of the Amendment should take on particular importance. (1) Admiralty was perhaps the most significant head of federal jurisdiction in the early 19th century. As Hamilton noted in a much-quoted passage from the Federalist Papers: "The most bigoted idolizers of State authority have not thus far shewn a disposition to deny the national judiciary the cognizance of maritime causes." The Federalist No. 80, p. 538 Although few admiralty cases could be expected to arise in which the States were defendants, the Marshall Court in the few instances in which it confronted the issue showed a strong reluctance to construe the Eleventh Amendment to interfere with the admiralty jurisdiction of the federal courts. In United the Court adjudicated a controversy over whether certain funds, proceeds of an admiralty prize sale dating from the 10's, belonged to the Commonwealth of Pennsylvania or to a private claimant. The Commonwealth claimed the money as the result of a state-court judgment in its favor, while the private claimant's claim was based on a judgment received from a national prize court established under the Articles of Confederation. The money claimed by the Commonwealth had been held by the State Treasurer, who had since died. Chief Justice Marshall, writing for the Court, held that the Eleventh Amendment did not interfere with the traditional common-law suit against a state official for recovery of funds held with notice of an adverse claim. According to Marshall, the suit could be maintained against the state official, even though the relief sought was a recovery of funds. Marshall carefully avoided deciding whether the Eleventh Amendment would have barred the action if it had been necessary *292 to bring it against the State itself: "If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion." Nonetheless, Marshall's construction of the Eleventh Amendment by preserving the essential remedy of a money judgment that, in effect, ran against the State, left federal admiralty jurisdiction intact. Later that same year, Justice Bushrod Washington, who had sat on the Peters Court, heard a sequel to Peters that arose when the State resisted the execution of the Peters judgment. United (No. 14,64) After agreeing with the Peters Court that the State Treasurer could be sued for the funds in his private capacity, he went on to note that the Eleventh Amendment in terms applies only to suits "in law or equity." Because the Framers of the Amendment did not add the words "or to cases of admiralty and maritime jurisdiction," the Amendment should not be construed to extend to admiralty cases.[45] Washington thus did not read the Amendment to require a broad constitutional prohibition of suits against States in federal court. Moreover, given the importance of admiralty jurisdiction at the time, Congress' failure to include admiralty suits in the express terms of the statute was unlikely to have been an oversight. The Marshall Court again refused to hold that the Eleventh Amendment barred suits in admiralty against States in Governor of On appeal *293 from a Federal Circuit Court decision, a claimant alleged that he, and not the State of Georgia, was entitled to the proceeds of a prize sale. Chief Justice Marshall, writing for the Court, held that the suit was in reality a suit against the State. Although the Governor was named as defendant, there was no allegation that he had violated any federal or state law, and thus "no case is made which justifies a decree against him personally." The Court then dismissed the case because the Circuit Court had no jurisdiction over it: "[I]f the 11th amendment to the Constitution, does not extend to proceedings in admiralty, it was a case for the original jurisdiction of the Supreme Court." [46] Writing in 1833, Justice Joseph Story noted: "It has been doubted, whether this amendment extends to cases of admiralty and maritime jurisdiction, where the proceeding is in rem and not in personam. There, the jurisdiction of the court is founded upon the possession of the thing; and if the state should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides the language of the amendment is, that `the judicial power of the United States shall not be construed to extend to any suit in law or equity.' But a suit in the admiralty is not, correctly speaking, a suit in law, or in equity; but is often spoken of in contradistinction to both." 3 J. Story, Commentaries on the Constitution of the United States 560-561 (1833).[4] *294 As Justice Story pointed out, the result of the early admiralty cases was that the Eleventh Amendment was not seen as an obstacle to the exercise of otherwise legitimate federal admiralty jurisdiction. (2) Until 185, Congress did not endow the federal courts with general federal-question jurisdiction. Nonetheless, the Supreme Court had several opportunities to decide federal-question cases against States. In some of these, suit was brought against a State in state court and an appeal was taken to the Supreme Court. If the Eleventh Amendment had constitutionalized state sovereign immunity as a limit to the Article federal judicial power, it would have operated as a limit on both original and appellate federal-question jurisdiction, for nothing in the text or subsequent interpretations of Article suggests that the federal judicial power extends more broadly to hear appeals than to decide original cases.[48] Although the Court has largely ignored this consequence of its constitutional sovereign immunity doctrine,[49] it was a consequence that the Marshall Court squarely faced. In Chief Justice Marshall addressed the question of the effect of the Eleventh Amendment on the Supreme Court's appellate jurisdiction to review a criminal conviction obtained in a Virginia state court. Counsel for the State argued that either the original *295 Constitution or the Eleventh Amendment denied the federal courts the power to hear such an appeal, in which a State was being "sued" for a writ of error in the Supreme Court. Marshall noted at the outset of his opinion for the Court that Article provides federal jurisdiction "to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party." at 38. After repeating this principle several times,[50] the Chief Justice stated: "We think, then, that as the constitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party." Marshall then went on to consider the applicability of the Eleventh Amendment. After holding that a criminal defendant's petition for a writ of error is not properly understood to be a suit "commenced" or "prosecuted" by an individual against a State, Marshall stated an alternative holding: "But should we in this be mistaken, the error does not affect the case now before the Court. If this writ of *296 error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted `by a citizen of another State, or by a citizen or subject of any foreign State.' It is not then within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen that, in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties."[51] Thus, the Marshall Court in Cohens squarely confronted the issue of the extent to which the Eleventh Amendment encroached on federal-question jurisdiction, and concluded that it made no encroachment at all. This result is not distinguishable on the ground that it concerned only the exercise of appellate, and not original, federal-question jurisdiction. As was made clear three years later in 9 Wheat. 38 : "In those cases in which original jurisdiction is given to the supreme court, the judicial power of the United States cannot be exercised in its appellate form. In every other case the power is to be exercised in its original *29 or appellate form, or both, as the wisdom of congress may direct. With the exception of these cases in which original jurisdiction is given to this court, there is none to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the constitution. Original jurisdiction, so far as the constitution gives a rule, is co-extensive with the judicial power. We find in the constitution no prohibition to its exercise, in every case in which the judicial power can be exercised." The Court continued, speaking of federal-question jurisdiction: "It would be a very bold construction to say that [the judicial] power could be applied in its appellate form only, to the most important class of cases to which it is applicable." Osborn itself involved several important Eleventh Amendment issues. The State of Ohio had seized bank notes and specie of the Bank of the United States pursuant to a statute imposing a tax on the Bank. The statute was evidently unconstitutional under the Court's holding in McCulloch v. The Bank, which was treated as a private corporation and not a division of the Federal Government for purposes of the suit, obtained an injunction in federal court prohibiting the State from enforcing the tax and requiring the return of the seized funds. The State of Ohio appealed to the Supreme Court, relying in part on the Eleventh Amendment as a bar to the proceedings. Chief Justice Marshall's opinion for the Court carefully explains that the sovereign immunity principles of the Eleventh Amendment have no application where the State is not a party of record: "It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains *2 the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record." 9 Wheat., at 85. Technically, this principle does not address the question whether a suit may be brought against a State, but rather the question whether a suit is indeed to be understood as a suit against a State.[52] Nonetheless, it represents a narrow, technical construction of the Eleventh Amendment, and is thus of a piece with the immediately following language: "The amendment has its full effect, if the constitution be construed as it would have been construed, had the jurisdiction of the court never been extended to suits brought against a State, by the citizens of another State, or by aliens." at 85-858. The restatement of the principle of Cohens demonstrates Marshall's understanding that neither Article nor the Eleventh Amendment limits the ability of the federal courts to hear the full range of cases arising under federal law. The lack of original federal-question jurisdiction, combined with the paucity of admiralty actions against the States, deprived the Marshall Court of the opportunity to rule often on the effect of the Eleventh Amendment on state sovereign immunity in federal court. Moreover, the Court's rulings demonstrate a certain reluctance squarely to decide the extent to which the States were suable in federal court. This was perhaps a result of the Court's sensitivity to the unpopular decision in the lack of effective governmental power to enforce its decisions, and the centripetal forces that were driving the Nation toward civil war. Nonetheless, *299 a careful reading of the Marshall Court's precedents indicates that the Marshall Court consistently adopted narrow and technical readings of the Amendment's import and thus carefully retained the full measure of federal-question and admiralty jurisdiction. IV The Marshall Court's precedents, and the original understanding of the Eleventh Amendment, survived until near the end of the 19th century. In 185, Congress gave the federal courts general original federal-question jurisdiction. 18 Stat. 40. For the first time, suits could now be brought against States in federal court based on the existence of a federal cause of action. In a citizen of sued his State for payment on some bonds that the state government had repudiated. The plaintiff claimed a violation of the Contracts Clause. The Court held in favor of the State and ordered the suit dismissed. has been taken to stand for the proposition that the Eleventh Amendment, despite its terms, bars the federal courts from hearing federal-question suits by citizens against their own State.[53] As I have argued before, the Court's ambiguous opinion need not be interpreted in this way. See -315 The Court relied on Justice Iredell's dissent in Chisholm, which as noted rested on the absence of a statutory cause of action for Mr. Chisholm against the State of Georgia and reserved the question of the constitutional status of state sovereign immunity. See -19. The Court further noted the "presumption that *300 no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution — anomalous and unheard of when the Constitution was adopted." The opinion can thus sensibly be read to have dismissed the suit before it on the ground that no federal cause of action supported the plaintiff's suit and that state-law causes of action would of course be subject to the ancient common-law doctrine of sovereign immunity. Whether the Court's departure from a sound interpretation of the Eleventh Amendment occurred in or only in later cases that misread however, is relatively unimportant. If is a constitutional holding, it rests by its own terms on two premises. First, the opinion cites the comments by Madison, Marshall, and Hamilton in the ratification debates. The Court concludes that permitting suits against States would be "startling and unexpected," and would "strain the Constitution and the law to a construction never imagined or dreamed of." The historical record outlined demonstrates that the Court's history was plainly mistaken. Numerous individuals at the time of the Constitution's ratification believed that it would have exactly the effect the Court found unimaginable. Moreover, even the comments of Madison, Marshall, and Hamilton need not be taken to advocate a constitutional doctrine of state sovereign immunity. Read literally and in context, all three were explicitly addressed to the particular problem of the state-citizen diversity clause. All three were vitally concerned with the constitutionally unauthorized displacement of the state law of creditors' rights and remedies that would be worked by an incorrect reading of the state-citizen diversity clause. All three are fully consistent with a recognition that the Constitution neither abrogated nor instituted state sovereign immunity, but rather left the ancient doctrine as it found it: a state-law defense available in state-law causes of action prosecuted in federal court. *301 Second, the opinion relies heavily on the supposedly "anomalous" result that, if the Eleventh Amendment were read literally, "in cases arising under the Constitution or laws of the United States, a State may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other States, or of a foreign state." Even if such an "anomaly" existed, it would not justify judicial rewriting of the Eleventh Amendment and Article and the wholesale disregard of precedents. But in any event a close look at the historical record reveals that the "anomaly" can easily be avoided without a general expansion of a constitutionalized sovereign immunity doctrine. The Eleventh Amendment can and should be interpreted in accordance with its original purpose to reestablish the ancient doctrine of sovereign immunity in state-law causes of action based on the state-citizen and state-alien diversity clauses; in such a state-law action, the identity of the parties is not alone sufficient to permit federal jurisdiction. If federal jurisdiction is based on the existence of a federal question or some other clause of Article however, the Eleventh Amendment has no relevance. There is thus no Article limitation on otherwise proper suits against States by citizens, noncitizens, or aliens, and no "anomaly" that requires such drastic "correction." The Court has repeatedly relied on as establishing a broad principle of state immunity from suit in federal court.[54] The historical record demonstrates that, if was a constitutional *302 holding, it rested on misconceived history and misguided logic.[55] The doctrine that has thus been created is pernicious. In an era when sovereign immunity has been generally recognized by courts and legislatures as an anachronistic and unnecessary remnant of a feudal legal system, see, e. g., Great Northern Life Ins. 322 U.S. 4, 5 ; 359 P.2d 45 ; W. Prosser, The Law of Torts 4- (4th ed. 191), the Court has aggressively expanded its scope. If this doctrine were required to enhance the liberty of our people in accordance with the Constitution's protections, I could accept it. If the doctrine were required by the structure of the federal system created by the Framers, I could accept it. Yet the current doctrine intrudes on the ideal of liberty under law by protecting the States from the consequences of their illegal conduct. And the decision obstructs the sound operation of our federal system by limiting the ability of Congress to take steps it deems necessary and proper to achieve national goals within its constitutional authority. I respectfully dissent.

Justice Burger

majority

City of Madison Sch. Dist. No. 8 v. Wisconsin Emp. Rel. Comm'n.

https://www.courtlistener.com/opinion/109568/city-of-madison-sch-dist-no-8-v-wisconsin-emp-rel-commn/

https://www.courtlistener.com/api/rest/v3/clusters/109568/

1976-023

The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings, at which public participation is permitted, if such speech is addressed to the subject of pending collective-bargaining negotiations. The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective-bargaining agreement during the calendar year of 1971.[1] In January 1971 negotiations commenced for renewal of the agreement and MTI submitted a number of proposals. One among them called for the inclusion of a so-called "fair-share" clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits inclusion of "fair share" provisions in municipal employee collective-bargaining agreements. Wis. Stat. § 111.70 (2) (1973). Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November 1971 with a number of issues still unresolved, among them "fair share" and arbitration. During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit, but not members of the union, mailed a letter to all teachers in the district *170 expressing opposition to the "fair share" proposal.[2] Two hundred teachers replied, most commenting favorably on Holmquist and Reed's position. Thereupon a petition was drafted calling for a one-year delay in the implementation of "fair share" while the proposal was more closely analyzed by an impartial committee.[3] The petition was circulated *171 to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and to MTI at the school board's public meeting that same evening. Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union's position. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented "an informal committee of 72 teachers in 49 schools" and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the "fair share" clause. He then read the petition which had been circulated to the teachers in the district that morning and stated that in the 31 schools from which reports had been received, 53% of the teachers had already signed the petition. *172 Holmquist stated that neither side had adequately addressed the issue of "fair share" and that teachers were confused about the meaning of the proposal. He concluded by saying: "Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and more importantly to the general public to whom we are all responsible. We ask simply for communication, not confrontation." The sole response from the school board was a question by the president inquiring whether Holmquist intended to present the board with the petition. Holmquist answered that he would. Holmquist's presentation had lasted approximately 2 1/2 minutes. Later that evening, the board met in executive session and voted a proposal acceding to all of the union's demands with the exception of "fair share." During a negotiating session the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971. (1) In January 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that in so doing the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective-bargaining representative, in violation of Wis. Stat. §§ 111.70 (3) (a) 1, 4 (1973).[4] Following *173 a hearing the Commission concluded that the board was guilty of the prohibited labor practice and ordered that it "immediately cease and desist from permitting employes, other than representatives of Madison Teachers Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining between it and Madison Teachers Inc." The Commission's action was affirmed by the Circuit Court of Dane County. The Supreme Court of Wisconsin affirmed. 69 Wis. 2d 200, 231 N.W.2d 206. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of " `a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent.' " Id., at 211, 231 N.W.2d, at 212, citing Schenck v. United States, 249 U.S. 47 (1919). The court held that abridgment of the speech in this case was justified in order "to avoid the dangers attendant upon relative chaos in labor management relations." 69 Wis. 2d, at 212, 231 N. W. 2d, at 213. (2) The Wisconsin court perceived "clear and present danger" based upon its conclusion that Holmquist's speech before the school board constituted "negotiation" with the board. Permitting such "negotiation," the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under Wis. Stat. § 111.70 (3) (a)4 (1973). From that *174 premise it concluded that teachers' First Amendment rights could be limited. Assuming, arguendo, that such a "danger" might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech. The Wisconsin Supreme Court's conclusion that Holmquist's terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court's determination that, " `[e]ven though Holmquist's statement superficially appears to be merely a "position statement," the court deems from the total circumstances that it constituted "negotiating." ' " This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so.[5] Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it appear that he was authorized by any other teachers to enter into any agreement on their behalf. Although his views were not consistent with those of MTI, communicating such views to the employer could not change the fact that MTI alone was authorized to negotiate and to enter into a contract with the board. Moreover the school board meeting at which Holmquist was permitted to speak was open to the public.[6] He addressed *175 the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be "compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work." Pickering v. Board of Education, 391 U.S. 563, 568 (1968). See also Keyishian v. Board of Regents, 385 U.S. 589 (1967); Shelton v. Tucker, 364 U.S. 479 (1960); Wieman v. Updegraff, 344 U.S. 183 (1952). Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings.[7] It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist. Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated— an issue we need not consider at this time—the participation in public discussion of public business cannot be confined to one category of interested individuals.[8] To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis *176 of constitutional guarantees.[9] Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972).[10] (3) The WERC's order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from "permitting employes . . . to appear and speak at meetings of the Board of Education" the order constitutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers "on matters subject to collective bargaining."[11] As the dissenting opinion below noted, however, *177 there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining. Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers' expressions to the board on matters involving the operation of the schools would seriously impair the board's ability to govern the district. The Wisconsin court's reliance on Broadrick v. Oklahoma, 413 U.S. 601 (1973), for the proposition that one whose conduct falls squarely within an otherwise valid proscription may not challenge that proscription on grounds of vagueness, is inapposite. The challenged portion of the order is designed to govern speech and conduct in the future, not to punish past conduct, and as such it is the essence of prior restraint. The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.

The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings, at which public participation is permitted, if such speech is addressed to the subject of pending collective-bargaining negotiations. The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective-bargaining agreement during the calendar year of 1971.[1] In January 1971 negotiations commenced for renewal of the agreement and MTI submitted a number of proposals. One among them called for the inclusion of a so-called "fair-share" clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits inclusion of "fair share" provisions in municipal employee collective-bargaining agreements. (2) Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November 1971 with a number of issues still unresolved, among them "fair share" and arbitration. During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit, but not members of the union, mailed a letter to all teachers in the district *170 expressing opposition to the "fair share" proposal.[2] Two hundred teachers replied, most commenting favorably on Holmquist and Reed's position. Thereupon a petition was drafted calling for a one-year delay in the implementation of "fair share" while the proposal was more closely analyzed by an impartial committee.[3] The petition was circulated *171 to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and to MTI at the school board's public meeting that same evening. Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union's position. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented "an informal committee of 72 teachers in 49 schools" and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the "fair share" clause. He then read the petition which had been circulated to the teachers in the district that morning and stated that in the 31 schools from which reports had been received, 53% of the teachers had already signed the petition. *172 Holmquist stated that neither side had adequately addressed the issue of "fair share" and that teachers were confused about the meaning of the proposal. He concluded by saying: "Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and more importantly to the general public to whom we are all responsible. We ask simply for communication, not confrontation." The sole response from the school board was a question by the president inquiring whether Holmquist intended to present the board with the petition. Holmquist answered that he would. Holmquist's presentation had lasted approximately 2 1/2 minutes. Later that evening, the board met in executive session and voted a proposal acceding to all of the union's demands with the exception of "fair share." During a negotiating session the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971. (1) In January 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that in so doing the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective-bargaining representative, in violation of (3) 1, 4[4] Following *173 a hearing the Commission concluded that the board was guilty of the prohibited labor practice and ordered that it "immediately cease and desist from permitting employes, other than representatives of Madison Teachers Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining between it and Madison Teachers Inc." The Commission's action was affirmed by the Circuit Court of Dane County. The Supreme Court of Wisconsin affirmed. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of " `a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent.' " citing The court held that abridgment of the speech in this case was justified in order "to avoid the dangers attendant upon relative chaos in labor management relations." 231 N. W. 2d, at 213. (2) The Wisconsin court perceived "clear and present danger" based upon its conclusion that Holmquist's speech before the school board constituted "negotiation" with the board. Permitting such "negotiation," the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under (3) 4 From that *174 premise it concluded that teachers' First Amendment rights could be limited. Assuming, arguendo, that such a "danger" might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech. The Wisconsin Supreme Court's conclusion that Holmquist's terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court's determination that, " `[e]ven though Holmquist's statement superficially appears to be merely a "position statement," the court deems from the total circumstances that it constituted "negotiating." ' " This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so.[5] Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it appear that he was authorized by any other teachers to enter into any agreement on their behalf. Although his views were not consistent with those of MTI, communicating such views to the employer could not change the fact that MTI alone was authorized to negotiate and to enter into a contract with the board. Moreover the school board meeting at which Holmquist was permitted to speak was open to the public.[6] He addressed *175 the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be "compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work." See also ; ; Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings.[7] It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist. Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated— an issue we need not consider at this time—the participation in public discussion of public business cannot be confined to one category of interested individuals.[8] To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis *176 of constitutional guarantees.[9] Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. See Police Dept. of[10] (3) The WERC's order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from "permitting employes to appear and speak at meetings of the Board of Education" the order constitutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers "on matters subject to collective bargaining."[11] As the dissenting opinion below noted, however, *177 there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining. Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers' expressions to the board on matters involving the operation of the schools would seriously impair the board's ability to govern the district. The Wisconsin court's reliance on for the proposition that one whose conduct falls squarely within an otherwise valid proscription may not challenge that proscription on grounds of vagueness, is inapposite. The challenged portion of the order is designed to govern speech and conduct in the future, not to punish past conduct, and as such it is the essence of prior restraint. The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.

Justice Thomas

majority

Montana v. Wyoming

https://www.courtlistener.com/opinion/215807/montana-v-wyoming/

https://www.courtlistener.com/api/rest/v3/clusters/215807/

2010-039

This case arises out of a dispute between Montana and Wyoming over the Yellowstone River Compact. Montana alleges that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The new systems, Montana alleges, employ sprinklers that reduce the amount of wastewater returned to the river, thus depriv­ ing Montana’s downstream pre-1950 appropriators of water to which they are entitled. The Special Master has filed a First Interim Report determining, as relevant here, that Montana’s allegation fails to state a claim because more efficient irrigation systems are permissible under the Compact so long as the conserved water is used to irrigate the same acreage watered in 1950. We agree with the Special Master and overrule Montana’s exception to that conclusion. I From its headwaters in Wyoming, the Yellowstone River flows nearly 700 miles northeast into Montana and then North Dakota, where it joins the Missouri River. Several 2 MONTANA v. WYOMING Opinion of the Court of its tributaries, including the Clarks Fork, Tongue, Powder, and Bighorn Rivers, also begin in Wyoming and cross into Montana before joining the main stem of the Yellowstone River. This river system’s monthly and an­ nual flows, which are dictated largely by snow melt, vary widely. In 1964, for example, the flow in the Tongue and Powder Rivers was nearly 10 times the 1961 flow. App. 936. As the rivers came into heavy use for irrigation, it became expedient to build water storage facilities for preserving the heaviest flows. See First Interim Report of Special Master 6 (hereinafter Report). Before funding new water storage facilities, Congress sought agreement as to the allocation of the Yellowstone River system among Wyoming, Montana, and North Da­ kota. In 1932, Congress granted the States permission to negotiate a compact. See Act of June 14, 1932, ch. 253, 47 Stat. 306. Draft compacts were produced in 1935, 1942, and 1944, but none was fully agreed upon. Finally, in 1951 Montana, Wyoming, and North Dakota ratified the Yellowstone River Compact, and Congress consented to it. Act of Oct. 30, 1951, 65 Stat. 663. The Yellowstone River Compact divides water into three tiers of priority. First, Article V(A) provides: “Appropria­ tive rights to the beneficial uses of the water of the Yellow­ stone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accor­ dance with the laws governing the acquisition and use of water under the doctrine of appropriation.” Id., at 666. Second, Article V(B) allocates to each State the “quantity of that water as shall be necessary to provide supplemen­ tal water supplies” for the pre-1950 uses protected by Article V(A). Ibid. Third, “the remainder of the unused and unappropriated water” of each tributary is divided by percentage: Wyoming receives 60% of the remaining water in the Clarks Fork River, 80% in the Bighorn River, 40% in the Tongue River, and 42% in the Powder River; the Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court rest goes to Montana. Id., at 666–667. In February 2008, we granted Montana leave to file a bill of complaint against Wyoming for breach of the Com­ pact. 552 U.S. 1175. Montana alleged that Wyoming had breached the Compact by consuming more than its share of the Tongue and Powder Rivers. Bill of Complaint 3, ¶8. Specifically, Montana claimed that Wyoming was ap­ propriating water for a number of new, post-1950 uses: irrigating new acreage; building new storage facilities; conducting new groundwater pumping; and increasing con­ sumption on existing agricultural acreage.1 Id., at 3–4, ¶¶ 9–12. According to Montana’s complaint, the Compact did not permit Wyoming to use water for any of these practices as long as Montana’s pre-1950 users’ rights remained unfulfilled. Id., at 3, ¶8. In response, Wyoming filed a motion to dismiss the complaint. We appointed a Special Master and referred the motion to him. 555 U. S. __ (2008). After briefing and argument, the Special Master recommended that we deny Wyoming’s motion, because at least some of Montana’s allegations state a claim for relief. The Special Master found that “Article V of the Compact protects pre-1950 appropriations in Montana from new surface and ground­ water diversions in Wyoming, whether for direct use or for storage, that prevent adequate water from reaching Mon­ tana to satisfy those pre-1950 appropriations.” Report 14– 15. But the Special Master agreed with Wyoming that Montana’s allegations regarding “efficiency improvements —————— 1 Montana has since clarified that increased consumption on existing acreage refers to the use of more efficient irrigation systems. The “efficiency” of irrigation for our purposes refers to the amount of wastewater that is lost, for example, to evaporation, seepage, runoff, or deep percolation. Some of the lost water returns to the river and is later available for downstream users. A more efficient irrigation system loses less water; thus, though it may draw the same volume of water from the river, net water consumption is increased. 4 MONTANA v. WYOMING Opinion of the Court by pre-1950 appropriators in Wyoming” do not state a claim for relief. Id., at 15. The States did not object to most of the Special Master’s findings, and we have issued orders accordingly. See 562 U. S. __ (2010); 562 U. S. __ (2010). Montana has filed an exception to the Special Master’s rejection of its increased-efficiency allegation. It is this exception that is before us.2 II Article V(A) of the Compact states that “[a]ppropriative rights to the beneficial uses of [water] . . . existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisi­ tion and use of water under the doctrine of appropriation.” Montana claims that its pre-1950 appropriators’ rights are not “continu[ing] to be enjoyed” because upstream pre­ 1950 appropriators in Wyoming have increased their consumption by switching from flood to sprinkler irriga­ tion. Montana alleges that sprinkler systems increase crop consumption of water and decrease the volume of runoff and seepage that returns to the Tongue and Powder rivers by 25% or more.3 See Montana’s Exception and Brief 3 (hereinafter Brief for Montana). As a result, even if Wyoming’s pre-1950 water users divert the same quan­ tity of water as before, less water reaches Montana. Ac­ cording to Montana, Article V(A) prohibits Wyoming from allowing this practice when it deprives Montana’s pre­ —————— 2 Montana also raised an exception to the Special Master’s finding that if Montana can remedy the shortage of water to its pre-1950 users by curtailing its post-1950 uses without “prejudic[ing] Montana’s other rights under the Compact,” then an intrastate remedy is “the appropri­ ate solution.” Report 15. We recommitted this exception to the Special Master. 562 U. S. __ (2010). 3 For purposes of resolving Wyoming’s motion to dismiss, we take as true Montana’s allegation that the new sprinkler systems actually reduce return flow to the rivers. Wyoming has not conceded that this is true. See Wyoming’s Reply to Montana’s Exception 35, n. 6. Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court 1950 users of their full water rights. The question, therefore, is whether Article V(A) allows Wyoming’s pre-1950 water users—diverting the same quantity of water for the same irrigation purpose and acreage as before 1950—to increase their consumption of water by improving their irrigation systems even if it reduces the flow of water to Montana’s pre-1950 users. Montana makes two basic arguments: that background principles of appropriation law, to the extent they are incorporated into the Compact, do not allow such an in­ crease in consumption; and that even if they do, the terms of the Compact amended those principles in Montana’s favor. The Special Master rejected these arguments, and so do we. A Because Article V(A) of the Compact protects “[a]ppropriative rights to the beneficial uses of [water]” as of 1950 “in accordance with the laws governing the ac- quisition and use of water under the doctrine of appro­ priation,” we begin with an overview of appropriation doctrine.4 As the Special Master explained, if “[a]p­ propriation law clearly proscribe[s] increases in consump­ tion on existing acreage to the detriment of downstream appropriators, the Compact arguably would prohibit Wyoming from allowing its appropriators to make —————— 4 As with all contracts, we interpret the Compact according to the intent of the parties, here the signatory States. We thus look primarily to the doctrine of appropriation in Wyoming and Montana, but, like the States, we also look to Western water law more generally and authori­ ties from before and after 1950. The States appear to have assumed that the doctrine has not changed in a way directly relevant here. We therefore do not decide whether Article V(A) intended to freeze appro­ priation law as it stood in 1949, or whether it incorporates the evolution of the doctrine over time, allowing Compact-protected rights to grow or shrink accordingly. We resolve the matter of Montana’s exception without prejudice to that issue. See Report 39–40. 6 MONTANA v. WYOMING Opinion of the Court such increases to the detriment of Montana’s pre-1950 uses.” Report 65. As is typical west of the 100th meridian, the doctrine of appropriation has governed water rights in Montana and Wyoming since the 1800’s. See, e.g., Basey v. Gallagher, 20 Wall. 670, 683 (1875). As relevant here, the doctrine provides that rights to water for irrigation are perfected and enforced in order of seniority, starting with the first person to divert water from a natural stream and apply it to a beneficial use (or to begin such a project, if diligently completed). See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 98 (1938); Arizona v. Cali fornia, 298 U.S. 558, 565–566 (1936); Wyo. Const., Art. 8, §3 (“Priority of appropriation for beneficial uses shall give the better right”). The scope of the right is limited by the concept of “beneficial use.” That concept restricts a farmer “to the amount of water that is necessary to irrigate his land by making a reasonable use of the water.” 1 C. Kinney, Law of Irrigation and Water Rights §586, pp. 1007–1008 (2d ed. 1912) (hereinafter Kinney) (internal quotation marks omitted); see also Bailey v. Tintinger, 45 Mont. 154, 176–178, 122 P. 575, 583 (1912); Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 376–380, 92 P.2d 568, 570–571 (1939). Once such a water right is perfected, it is senior to any later appropriators’ rights and may be ful­ filled entirely before those junior appropriators get any water at all. For our purposes, Montana’s pre-1950 water users are similar to junior appropriators. As between the States, the Compact assigned the same seniority level to all pre­ 1950 water users in Montana and Wyoming. See Brief for Montana 23; Brief for United States as Amicus Curiae 12. But as Montana concedes, precisely because of this equal seniority, its downstream pre-1950 users cannot stop Wyoming’s upstream pre-1950 users from fully exercising their water rights. Thus, when the rivers are low, Mon­ Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court tana’s downstream pre-1950 users might get no water at all because the equally senior users upstream in Wyoming may lawfully consume all of the water. Tr. of Oral Arg. 51. Junior appropriators are not completely without rights, however. As they come online, appropriators acquire rights to the stream basically as it exists when they find it. See 2 Kinney §803, at 1403–1404. Accordingly, subject to the fulfillment of all senior users’ existing rights, under the no-injury rule junior users can prevent senior users from enlarging their rights to the junior users’ detriment. 1 W. Hutchins, Water Rights Laws in the Nineteen West­ ern States 573 (1971) (hereinafter Hutchins). Montana’s pre-1950 users can therefore “insist that [Wyoming’s pre-1950 users] confine themselves strictly within the rights which the law gives them, that is, to the amount of water within the extent of their appropriation which they actually apply to some beneficial use.” 2 Kinney §784, at 1366. That general proposition is undis­ puted; the dispute here is in its application. Is a switch to more efficient irrigation with less return flow within the extent of Wyoming’s pre-1950 users’ existing appropriative rights, or is it an improper enlargement of that right to the detriment of Montana’s pre-1950 water users? As the Special Master observed, the law of return flows is an unclear area of appropriation doctrine. Report 65 (citing Trelease, Reclamation Water Rights, 32 Rocky Mt. L. Rev. 464, 469 (1960)). The States have not directed us to any case on all fours with this one. Indeed, “[n]o west­ ern state court appears to have conclusively answered the question.” Report 65. Despite the lack of clarity, the Special Master found several reasons to conclude that Wyoming’s pre-1950 users may switch to sprinkler irrigation. He found that the scope of the original appropriative right includes such a change so long as no additional water is diverted from the 8 MONTANA v. WYOMING Opinion of the Court stream and the conserved water is used on the same acre­ age for the same agricultural purpose as before. We agree with the Special Master.5 1 First, although the no-injury rule prevents appropria­ tors from making certain water-right changes that would harm other appropriators, a change in irrigation methods does not appear to run afoul of that rule in Montana and Wyoming. See id., at 69. Because each new appropriator is entitled to the stream as it exists when he finds it, the general rule is that “if a change in these conditions is made by [a senior] appropriator, which interferes with the flow of the water to the material injury of [the junior appropriator’s] rights, he may justly complain.” 2 Kinney §803, at 1404. But the no-injury rule is not absolute; it generally con­ cerns changes in the location of the diversion and the place or purpose of use. Quigley v. McIntosh, 110 Mont. —————— 5 The lack of clarity in this area of water law highlights the sensitive nature of our inquiry and counsels caution. Our original jurisdiction over cases between States brings us this dispute between Montana and Wyoming about the meaning of their congressionally approved Yellow­ stone River Compact. See U. S. Const., Art. III, §2, cl. 2; 28 U.S. C. §1251(a). Yet, because the Compact references and the parties direct us to principles of appropriation doctrine, we find ourselves immersed in state water law. See n. 4, supra. Our assessment of the scope of these water rights is merely a federal court’s description of state law. The highest court of each State, of course, remains “the final arbiter of what is state law.” West v. American Telephone & Telegraph Co., 311 U.S. 223, 236 (1940). We recognize that appropriation doctrine contin­ ues to evolve, and there are reasonable policy arguments in favor of both States’ positions here. But it is not this Court’s role to guide the development of state water regulation. See id., at 237 (“[I]t is the duty of [federal courts] in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of ‘general law’ ”). Our decision is not intended to restrict the States’ determina­ tion of their respective appropriation doctrines. Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court 495, 505, 103 P.2d 1067, 1072 (1940) (“[P]lace of diver­ sion, or place or purpose of use, may be changed only if others are not thereby injured” (internal quotation marks omitted)); see also 1 S. Wiel, Water Rights in the Western States §498, p. 532 (3d ed. 1911) (hereinafter Wiel); Mont. Code Ann. §89–803 (1947); Wyo. Stat. Ann. §41–3–104 (1977). Accordingly, certain types of changes can occur even though they may harm downstream appropriators. See D. Getches, Water Law in a Nutshell 175 (4th ed. 2009) (hereinafter Getches). For instance, an appropriator may increase his consumption by changing to a more water-intensive crop so long as he makes no change in acreage irrigated or amount of water diverted. See id., at 183; East Bench Irrig. Co. v. Deseret Irrig. Co., 2 Utah 2d 170, 179, 271 P.2d 449, 455 (1954) (assuming that farm­ ers may “legally increase the quantity of water consumed in irrigating their lands by changing to more water con­ suming crops” and adding that “it would be difficult to prevent . . . such increased consumptive use”). Ordinary, day-to-day operational changes or repairs also do not violate the no-injury rule. See, e.g., 1 Wiel §56, at 51 (“Would the fact that my pump has for years dripped water onto a neighbor’s ground give him a right to say that my pump must go on leaking?”). Consumption can even be increased by adding farm acreage, so long as that was part of the plan from the start, and diligently pursued through the years. See Van Tassel Real Estate & Live Stock Co. v. Cheyenne, 49 Wyo. 333, 357–359, 54 P.2d 906, 913 (1936) (per curiam); 1 Hutchins 377–378; St. Onge v. Blakely, 76 Mont. 1, 22–24, 245 P. 532, 539 (1926). Improvements to irrigation systems seem to be the sort of changes that fall outside the no-injury rule as it exists in Montana and Wyoming. Those changes are not to the “place of diversion, or place or purpose of use,” Quigley, supra, at 505, 103 P. 2d, at 1072, and thus seem to be excluded, much like crop changes or day-to-day irrigation 10 MONTANA v. WYOMING Opinion of the Court adjustments or repairs. This is also consistent with the fact that by 1950 both States had statutes regulating certain changes to water rights, but neither required farmers to take official action before adjusting irrigation methods.6 See Report 69–70, 87; id., at 69 (they “do not generally have procedures for overseeing changes in water efficiencies stemming from crop shifts or irrigation im­ provements where there are no formal changes in the underlying water rights”). Like the Special Master, we find this to be persuasive evidence that the States consid­ ered such changes permissible. Montana argues that, regardless of the statutes, private lawsuits could be brought to challenge such efficiency changes. But it has not provided a single example from either State. Instead, Montana and Wyoming cases typi­ cally describe the no-injury rule as applying to changes in point of diversion, purpose of use, and place of use. See, e.g., Maclay v. Missoula Irrig. Dist., 90 Mont. 344, 355– 357, 3 P.2d 286, 291 (1931); Thayer v. Rawlins, 594 P.2d 951, 955 (Wyo. 1979). The abundance of litigation over such changes—and the absence of any litigation over the sort of change at issue here—strongly implies that irriga­ tion efficiency improvements do not violate the no-injury rule and were considered within the scope of the original appropriative right. 2 The doctrine of recapture also supports treating im­ provements in irrigation efficiency as within the original appropriative right. Under this doctrine, an appropriator who has diverted water for irrigation purposes has the right to recapture and reuse his own runoff and seepage —————— 6 Mont. Code Ann. §89–803 (1947); Wyo. Stat. Ann. §71–401 (1945) (water rights “cannot be detached from the lands, place or purpose for which they are acquired” outside of specific exceptions); see also 1885 Mont. Laws p. 131, §3. Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court water before it escapes his control or his property.7 An appropriator is entitled to the “exclusive control [of his appropriated water] so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run-off and deep percolation, necessarily incident to practical irriga­ tion.” Ide v. United States, 263 U.S. 497, 506 (1924) (internal quotation marks omitted); see also Arizona Pub. Serv. Co. v. Long, 160 Ariz. 429, 437–438, 773 P.2d 988, 996–997 (1989) (“No appropriator can compel any other appropriator to continue the waste of water which benefits the former. If the senior appropriator, through scientific and technical advances, can utilize his water so that none is wasted, no other appropriator can complain”). Montana contends that this rule does not apply when the runoff or seepage water would, if not recaptured, return to the same stream from which it was originally drawn. There is some support for Montana’s position— that a beneficial user may not reuse water at all, even while it is still on his property, if it otherwise would flow back to the same stream—especially in Utah and Colorado cases. See Deseret Irrig. Co., supra, at 180–182, 271 P. 2d, at 456–457; Estate of Steed v. New Escalante Irrig. Co., 846 P.2d 1223, 1226 (Utah 1992); Comstock v. Ramsay, 55 Colo. 244, 252–258, 133 P. 1107, 1110–1111 (1913).8 But other authorities draw no such exception based on where the runoff or seepage is heading. See 2 Hutchins 580–582 —————— 7 And in some narrowly defined circumstances, he retains this right even after the water leaves his property. See 1 Wiel §§38–40, at 37–43. 8 Colorado has a relatively unique doctrine of recapture. See Hoese, Comment, Recapture of Reclamation Project Ground Water, 53 Cal. L. Rev. 541, 544, n. 18 (1965) (noting the general doctrine of recapture, and adding that “[t]he Colorado rule, however, is to the contrary”); United States v. Tilley, 124 F.2d 850, 858 (CA8 1941) (allowing recap­ ture by the original appropriator under Nebraska law, and noting Colorado’s opposite rule). 12 MONTANA v. WYOMING Opinion of the Court (asserting that, even in Utah, “where the original appro­ priator retains possession and control of the waste and seepage water from irrigation of his lands, he is entitled to reuse these waters for his own benefit and need not return them to the channel from which they were diverted” (em­ phasis added)); Getches 139–145; Woolman v. Garringer, 1 Mont. 535 (1872). And Montana cites no case from either State here in which a court has recognized, much less found controlling, the idea that a water user may not reuse his own wastewater while it is still on his property simply because it otherwise would return to the original stream. In fact, Montana and Wyoming appear to apply, without qualification, the basic doctrine that the original appro­ priator may freely recapture his used water while it re­ mains on his property and reuse it for the same purpose on the same land. For example, in Binning v. Miller, 55 Wyo. 451, 102 P.2d 54 (1940), a man was diverting water from a creek fed largely by irrigation runoff and seepage from Binning’s property. Although the court found that the man had a right to that water once Binning’s runoff and seepage had become a natural stream, it noted that his right remained subject to Binning’s right “to use the water above mentioned for beneficial purposes upon the land for which the seepage water was [originally] appro­ priated.” Id., at 477, 102 P. 2d, at 63. In a later case, the court explained that the man could not “secure a perma­ nent right to continue to receive the water” because Binning “might find better ways of utilizing the water on the same land so that less waste and seepage would oc­ cur.” Bower v. Big Horn Canal Assn., 77 Wyo. 80, 101, 307 P.2d 593, 601 (1957). Similarly, in Bower v. Big Horn Canal Assn., the court held that Bower could appropriate water as it seeped across his property from the Big Horn Canal toward a nearby river. Id., at 102–104, 307 P. 2d, at 602. The court Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court added, however, that Bower’s right was subject always to the Big Horn Canal’s right: “No appropriator can compel any other appropriator to continue the waste of water which benefits the former.” Id., at 101, 307 P. 2d, at 601. Importantly, the court noted that “[i]f the senior appro­ priator by a different method of irrigation can so utilize his water that it is all consumed in transpiration and consumptive use and no waste water returns by seepage or percolation to the river, no other appropriator can complain.” Ibid. Finally, in Fuss v. Franks, 610 P.2d 17 (Wyo. 1980), water was seeping from Fuss’ property and into a pit in a public right of way. Franks was the first to appropriate the water from the pit. The court upheld Franks’ appro­ priation right because the water had already escaped from Fuss’ property. The court said that the “owner of land upon which seepage or waste water rises has the right to use and reuse—capture and recapture—such waste wa­ ters,” but only before the water escapes his land, and “for use only upon the land for which the water forming the seepage was originally appropriated.” Id., at 20 (internal quotation marks omitted). Fuss thus had no superior right to the water that had left his property, and espe­ cially not for reuse on other lands. The law in Montana is similar. The Montana Supreme Court has explained that “the general rule . . . is that the owner of the right to use the water—his private property while in his possession,—may collect it, recapture it, be­ fore it leaves his possession.” Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 268, 17 P.2d 1074, 1080 (1933); see also A. Stone, Montana Water Law 66 (1994) (noting that, according to the “early cases,” while “the water is still seeping and running off one’s own land, the landowner is free to recapture and further use it”). The right of recapture discussed in these authorities is broad. As the Special Master recognized, the “language of 14 MONTANA v. WYOMING Opinion of the Court the Wyoming Supreme Court . . . was expansive” in Binning, Bower, and Fuss, and “all appear to hold that an appropriator in Wyoming can increase his water use effi­ ciency by recovering runoff on his property or through other means so long as the increased consumption is on the same land to which the appropriative right attaches.” Report 81; see also id., at 78–85; Thompson, Case Note, Water Law—Reusing Irrigation Waste Water on Different Lands: A Warning to Get a New Permit, Fuss v. Franks, 610 P.2d 17 (Wyo. 1980), 16 Land & Water L. Rev. 71, 76 (1981) (concluding that in Wyoming, “a prior appropriator can at anytime, utilize irrigation methods that are totally consumptive, such as pumping the collected waste water back to the top of the field or installing a sprinkler system, thereby eliminating all waste of water”); Jones, Note, Rights of the Original Appropriator to Recapture Water Used in Irrigation, 11 Wyo. L. J. 39 (1956); Wille, Note, The Right to Use Waste Water Before It Re-enters the Stream, 12 Wyo. L. J. 47, 48 (1957). The Wyoming and Montana doctrine of recapture strongly suggests that improvements in irrigation effi­ ciency are within the original appropriative right of Wyo­ ming’s pre-1950 water users. By using sprinklers rather than flood irrigation, those water users effectively recap­ ture water. The sprinklers, by reducing loss due to seep­ age and runoff, operate much like, if more efficiently than, cruder recapture systems involving ditches or pits. They are simply different mechanisms for increasing the volume of water available to the crops without changing the amount of diversion. Binning, Bower, and Fuss expressly acknowledged that in such situations, lower appropriators who have perfected their own appropriative rights are nonetheless at the mercy of the property owners from which their water flows. See 55 Wyo., at 474–477, 102 P.2d, at 63; 77 Wyo., at 100–104, 307 P.2d, at 601–602; 610 P. 2d, at 20. Cite as: 563 U. S. ____ (2011) 15 Opinion of the Court 3 Our conclusion is consistent with that of water law scholars who have considered the specific question pre­ sented in this case. One scholar asserted: “[O]f course, increasing efficiency at one site may reduce the amount of water available to downstream users who may rely on return flows from other users. [Wyoming] law, however, does not preclude more efficient uses merely because a downstream user may be injured.” Squillace, A Critical Look at Wyoming Water Law, 24 Land & Water L. Rev. 307, 331 (1989); see id., at 331, n. 156 (“For example, a farmer who traditionally consumes only 50% of the water applied to his land is free to change his crop or method of applying water so as to increase his consumption to 60%”); see also Thompson, supra, at 76 (“[A] prior appropriator can at anytime . . . instal[l] a sprinkler system, thereby eliminating all waste of water”). And a national hornbook on water law has observed: “The rule allowing recapture and reuse of salvaged water on the original land can result in more water being consumed. For instance, if a water user is con­ suming less than the permitted amount of water and plants a more water-intensive crop or puts in a more efficient irrigation system, most or all of the water that had previously been returned to the stream might be consumed. This can deprive other appro­ priators of water on which they depend but it is al­ lowed since it is technically within the terms of the original appropriation.” Getches 143–144. Montana has not identified any scholars who have reached the opposite conclusion. For all of these reasons, we hold that the doctrine of appropriation in Wyoming and Montana allows appro­ priators to improve their irrigation systems, even to the detriment of downstream appropriators. We readily ac­ 16 MONTANA v. WYOMING Opinion of the Court knowledge that this area of law is far from clear. See supra, at 7. But the apparent scope of the no-injury rule in Wyoming and Montana, the doctrine of recapture and its broad reach in Wyoming and Montana case law, and the specific conclusions of water law scholars all point in the same direction, which also comports with the Special Master’s exhaustive discussion and findings. Accordingly, if Article V(A) simply incorporates background principles of appropriation law, it allows Wyoming’s pre-1950 water users to improve their irrigation efficiency, even to the detriment of Montana’s pre-1950 users. B Montana, however, takes another tack. It argues that even if background principles of appropriation law do not support its position, Article V(A) of the Compact does not protect the full scope of ordinary appropriative rights. Montana claims that the Compact’s definition of “benefi­ cial use” restricts the scope of protected pre-1950 appro­ priative rights to the net volume of water that was actu­ ally being consumed in 1950. We agree with the Special Master that this argument also fails. 1 Article V(A) protects “[a]ppropriative rights to the bene­ ficial uses of . . . water.” “Beneficial use,” in turn, is de­ fined in Article II(H) as “that use by which the water supply of a drainage basin is depleted when usefully em­ ployed by the activities of man.” 65 Stat. 665. Montana contends that “beneficial use” is thus defined as the amount of depletion. According to Montana, any activity that increases pre-1950 water users’ depletions in Wyo­ ming beyond pre-1950 levels exceeds the scope of the appropriative rights that Article V(A) protects. See Brief for Montana 25–28. On this basis, Montana asserts that the Compact requires (subject to river conditions) that the Cite as: 563 U. S. ____ (2011) 17 Opinion of the Court same quantity of water that was reaching Montana as of January 1, 1950, continue to do so. Id., at 26. 2 We acknowledge that “beneficial use” refers to a type of use that involves some depletion, as all irrigation does. See Report 61. The part of the Compact’s definition of “beneficial use” that refers to depletion—“that use by which the water supply . . . is depleted”—is fairly clear. It begins with “that use,” and the words that follow merely explain that “that use” must be a use that “deplete[s]” the “water supply.” Nothing in the language suggests that “beneficial use” means a measure of the amount of water depleted. A “beneficial use” within the meaning of the Compact, therefore, is a type of use that depletes the water supply. This plain reading makes sense in light of the circum­ stances existing in the signatory States when the Compact was drafted. At that time, Wyoming had a statutory preference for irrigation, a type of depletive use, over power generation, a nondepletive use. Wyo. Stat. Ann. §71–402 (1945). It makes sense that the Compact would have been written to protect the irrigation uses that were legislatively favored and represented the predominant use of the Yellowstone River system. See Tr. of Oral Arg. 45– 47; 65 Stat. 663 (Compact Preamble) (noting that the Compact recognizes “the great importance of water for irrigation in the signatory States”). Montana’s reading of the Compact, by contrast, does not follow from the text and would drastically redefine the term “beneficial use” from its longstanding meaning. The amount of water put to “beneficial use” has never been defined by net water consumption. The quantity of water “beneficially used” in irrigation, for example, has always included some measure of necessary loss such as runoff, evaporation, deep percolation, leakage, and seepage (re­ 18 MONTANA v. WYOMING Opinion of the Court gardless of whether any of it returns to the stream). So, water put to “[b]eneficial use is not what is actually con­ sumed, but what is actually necessary in good faith.” 1 Wiel §481, at 509; see also Trelease, The Concept of Rea­ sonable Beneficial Use in the Law of Surface Streams, 12 Wyo. L. J. 1, 10 (1957) (listing irrigation as a beneficial use and noting that “the method of application, by flood­ ing, channeling, or sprinkling, is immaterial”); J. Sax, B. Thompson, J. Leshy, & R. Adams, Legal Control of Water Resources 131 (4th ed. 2006) (discussing normal irrigation practices and observing that the amount of water put to beneficial use “is often considerably more than the quan­ tum actually consumed”). If the Compact’s definition of “beneficial use” were meant to drastically redefine the term into shorthand for net water consumption, we would expect far more clarity. For example, the Compact could have stated that it would protect “only ‘the amount of water consumed for a benefi­ cial use in each signatory state as of January 1, 1950.’ ” Report 60. Or it could have defined “beneficial use” as the “volume by which the water supply . . . is depleted.” More­ over, if the Compact effected a dramatic reframing of ordinary appropriation principles, the rest of Article V(A), which expressly states that “the laws governing the acqui­ sition and use of water under the doctrine of appropria­ tion” control, would make little sense. We agree with the Special Master that the definition of beneficial use in the Compact is unremarkable. Arti­ cle V(A) does not change the scope of the pre-1950 appro­ priative rights that it protects in both States. 3 Finally, if Article V(A) were intended to guarantee Montana a set quantity of water, it could have done so as plainly as other compacts that do just that. By 1950, Wyoming itself had entered into at least one compact that Cite as: 563 U. S. ____ (2011) 19 Opinion of the Court defined water rights in terms of depletion. The Colorado River Compact of 1922 apportioned 7,500,000 acre-feet of water per year for “the exclusive beneficial consumptive use” of several upstream States, including Wyoming. That compact specifically added that “[t]he States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre feet for any period of ten consecutive years . . . .” National Resources Planning Bd., Water Resources Comm., Inter­ state Water Compacts, 1785–1941, p. 8 (1942). See also Republican River Compact (1943), Kan. Stat. Ann. §82a–518 (1997) (allocating water by the acre-foot for beneficial consumptive use in Kansas, Nebraska, and Colorado). And, even here in the Yellowstone River Com­ pact, Article V(B) unambiguously apportions the third tier of Yellowstone River system water by percentage. 65 Stat. 666. The notion that Article V(A) accomplishes essen- tially the same sort of depletive allocation with language that has a different and longstanding meaning is simply unpersuasive. * * * We conclude that the plain terms of the Compact protect ordinary “[a]ppropriative rights to the beneficial uses of [water] . . . existing in each signatory State as of January 1, 1950.” Art. V(A), ibid. And the best evidence we have shows that the doctrine of appropriation in Wyoming and Montana allows appropriators to improve the efficiency of their irrigation systems, even to the detriment of down­ stream appropriators. Montana’s allegation that Wyo­ ming has breached Article V(A) of the Compact by allow­ ing its pre-1950 water users to increase their irrigation efficiency thus fails to state a claim. Accordingly, Mon­ tana’s first exception to the Special Master’s First Interim Report is overruled. It is so ordered. 20 MONTANA v. WYOMING Opinion of the Court JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. ____ (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 137, Orig. _________________ STATE OF MONTANA, PLAINTIFF v.

This case arises out of a dispute between Montana and Wyoming over the Yellowstone River Compact. Montana alleges that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The new systems, Montana alleges, employ sprinklers that reduce the amount of wastewater returned to the river, thus depriv­ ing Montana’s downstream pre-1950 appropriators of water to which they are entitled. The Special Master has filed a First Interim Report determining, as relevant here, that Montana’s allegation fails to state a claim because more efficient irrigation systems are permissible under the Compact so long as the conserved water is used to irrigate the same acreage watered in 1950. We agree with the Special Master and overrule Montana’s exception to that conclusion. I From its headwaters in Wyoming, the Yellowstone River flows nearly 700 miles northeast into Montana and then North Dakota, where it joins the Missouri River. Several 2 MONTANA v. WYOMING Opinion of the Court of its tributaries, including the Clarks Fork, Tongue, Powder, and Bighorn Rivers, also begin in Wyoming and cross into Montana before joining the main stem of the Yellowstone River. This river system’s monthly and an­ nual flows, which are dictated largely by snow melt, vary widely. In 196, for example, the flow in the Tongue and Powder Rivers was nearly 10 times the 1961 flow. App. 936. As the rivers came into heavy use for irrigation, it became expedient to build water storage facilities for preserving the heaviest flows. See First Interim Report of Special Master 6 (hereinafter Report). Before funding new water storage facilities, Congress sought agreement as to the allocation of the Yellowstone River system among Wyoming, Montana, and North Da­ kota. In 1932, Congress granted the States permission to negotiate a compact. See Act of June 1, 1932, ch. 253, 7 Stat. 306. Draft compacts were produced in 1935, 192, and 19, but none was fully agreed upon. Finally, in 1951 Montana, Wyoming, and North Dakota ratified the Yellowstone River Compact, and Congress consented to it. Act of Oct. 30, 1951, The Yellowstone River Compact divides water into three tiers of priority. First, Article V(A) provides: “Appropria­ tive rights to the beneficial uses of the water of the Yellow­ stone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accor­ dance with the laws governing the acquisition and use of water under the doctrine of appropriation.” Second, Article V(B) allocates to each State the “quantity of that water as shall be necessary to provide supplemen­ tal water supplies” for the pre-1950 uses protected by Article V(A). Third, “the remainder of the unused and unappropriated water” of each tributary is divided by percentage: Wyoming receives 60% of the remaining water in the Clarks Fork River, 80% in the Bighorn River, 0% in the Tongue River, and 2% in the Powder River; the Cite as: 563 U. S. (2011) 3 Opinion of the Court rest goes to Montana. –667. In February 2008, we granted Montana leave to file a bill of complaint against Wyoming for breach of the Com­ pact. Montana alleged that Wyoming had breached the Compact by consuming more than its share of the Tongue and Powder Rivers. Bill of Complaint 3, ¶8. Specifically, Montana claimed that Wyoming was ap­ propriating water for a number of new, post-1950 uses: irrigating new acreage; building new storage facilities; conducting new groundwater pumping; and increasing con­ sumption on existing agricultural acreage.1 at 3–, ¶¶ 9–12. According to Montana’s complaint, the Compact did not permit Wyoming to use water for any of these practices as long as Montana’s pre-1950 users’ rights remained unfulfilled. In response, Wyoming filed a motion to dismiss the complaint. We appointed a Special Master and referred the motion to him. 555 U. S. (2008). After briefing and argument, the Special Master recommended that we deny Wyoming’s motion, because at least some of Montana’s allegations state a claim for relief. The Special Master found that “Article V of the Compact protects pre-1950 appropriations in Montana from new surface and ground­ water diversions in Wyoming, whether for direct use or for storage, that prevent adequate water from reaching Mon­ tana to satisfy those pre-1950 appropriations.” Report 1– 15. But the Special Master agreed with Wyoming that Montana’s allegations regarding “efficiency improvements —————— 1 Montana has since clarified that increased consumption on existing acreage refers to the use of more efficient irrigation systems. The “efficiency” of irrigation for our purposes refers to the amount of wastewater that is lost, for example, to evaporation, seepage, runoff, or deep percolation. Some of the lost water returns to the river and is later available for downstream users. A more efficient irrigation system loses less water; thus, though it may draw the same volume of water from the river, net water consumption is increased. MONTANA v. WYOMING Opinion of the Court by pre-1950 appropriators in Wyoming” do not state a claim for relief. The States did not object to most of the Special Master’s findings, and we have issued orders accordingly. See 562 U. S. (2010); 562 U. S. (2010). Montana has filed an exception to the Special Master’s rejection of its increased-efficiency allegation. It is this exception that is before us.2 II Article V(A) of the Compact states that “[a]ppropriative rights to the beneficial uses of [water] existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisi­ tion and use of water under the doctrine of appropriation.” Montana claims that its pre-1950 appropriators’ rights are not “continu[ing] to be enjoyed” because upstream pre­ 1950 appropriators in Wyoming have increased their consumption by switching from flood to sprinkler irriga­ tion. Montana alleges that sprinkler systems increase crop consumption of water and decrease the volume of runoff and seepage that returns to the Tongue and Powder rivers by 25% or more.3 See Montana’s Exception and Brief 3 (hereinafter Brief for Montana). As a result, even if Wyoming’s pre-1950 water users divert the same quan­ tity of water as before, less water reaches Montana. Ac­ cording to Montana, Article V(A) prohibits Wyoming from allowing this practice when it deprives Montana’s pre­ —————— 2 Montana also raised an exception to the Special Master’s finding that if Montana can remedy the shortage of water to its pre-1950 users by curtailing its post-1950 uses without “prejudic[ing] Montana’s other rights under the Compact,” then an intrastate remedy is “the appropri­ ate solution.” Report 15. We recommitted this exception to the Special Master. 562 U. S. (2010). 3 For purposes of resolving Wyoming’s motion to dismiss, we take as true Montana’s allegation that the new sprinkler systems actually reduce return flow to the rivers. Wyoming has not conceded that this is true. See Wyoming’s Reply to Montana’s Exception 35, n. 6. Cite as: 563 U. S. (2011) 5 Opinion of the Court 1950 users of their full water rights. The question, therefore, is whether Article V(A) allows Wyoming’s pre-1950 water users—diverting the same quantity of water for the same irrigation purpose and acreage as before 1950—to increase their consumption of water by improving their irrigation systems even if it reduces the flow of water to Montana’s pre-1950 users. Montana makes two basic arguments: that background principles of appropriation law, to the extent they are incorporated into the Compact, do not allow such an in­ crease in consumption; and that even if they do, the terms of the Compact amended those principles in Montana’s favor. The Special Master rejected these arguments, and so do we. A Because Article V(A) of the Compact protects “[a]ppropriative rights to the beneficial uses of [water]” as of 1950 “in accordance with the laws governing the ac- quisition and use of water under the doctrine of appro­ priation,” we begin with an overview of appropriation doctrine. As the Special Master explained, if “[a]p­ propriation law clearly proscribe[s] increases in consump­ tion on existing acreage to the detriment of downstream appropriators, the Compact arguably would prohibit Wyoming from allowing its appropriators to make —————— As with all contracts, we interpret the Compact according to the intent of the parties, here the signatory States. We thus look primarily to the doctrine of appropriation in Wyoming and Montana, but, like the States, we also look to Western water law more generally and authori­ ties from before and after 1950. The States appear to have assumed that the doctrine has not changed in a way directly relevant here. We therefore do not decide whether Article V(A) intended to freeze appro­ priation law as it stood in 199, or whether it incorporates the evolution of the doctrine over time, allowing Compact-protected rights to grow or shrink accordingly. We resolve the matter of Montana’s exception without prejudice to that issue. See Report 39–0. 6 MONTANA v. WYOMING Opinion of the Court such increases to the detriment of Montana’s pre-1950 uses.” Report 65. As is typical west of the 100th meridian, the doctrine of appropriation has governed water rights in Montana and Wyoming since the 1800’s. See, e.g., As relevant here, the doctrine provides that rights to water for irrigation are perfected and enforced in order of seniority, starting with the first person to divert water from a natural stream and apply it to a beneficial use (or to begin such a project, if diligently completed). See ; 2 U.S. 558, ; Wyo. Const., Art. 8, (“Priority of appropriation for beneficial uses shall give the better right”). The scope of the right is limited by the concept of “beneficial use.” That concept restricts a farmer “to the amount of water that is necessary to irrigate his land by making a reasonable use of the water.” 1 C. Kinney, Law of Irrigation and Water Rights pp. 1007–1008 (hereinafter Kinney) (internal quotation marks omitted); see also ; 376–380, 570–571 (1939). Once such a water right is perfected, it is senior to any later appropriators’ rights and may be ful­ filled entirely before those junior appropriators get any water at all. For our purposes, Montana’s pre-1950 water users are similar to junior appropriators. As between the States, the Compact assigned the same seniority level to all pre­ 1950 water users in Montana and Wyoming. See Brief for Montana 23; Brief for United States as Amicus Curiae 12. But as Montana concedes, precisely because of this equal seniority, its downstream pre-1950 users cannot stop Wyoming’s upstream pre-1950 users from fully exercising their water rights. Thus, when the rivers are low, Mon­ Cite as: 563 U. S. (2011) 7 Opinion of the Court tana’s downstream pre-1950 users might get no water at all because the equally senior users upstream in Wyoming may lawfully consume all of the water. Tr. of Oral Arg. 51. Junior appropriators are not completely without rights, however. As they come online, appropriators acquire rights to the stream basically as it exists when they find it. See 2 Kinney at 103–10. Accordingly, subject to the fulfillment of all senior users’ existing rights, under the no-injury rule junior users can prevent senior users from enlarging their rights to the junior users’ detriment. 1 W. Hutchins, Water Rights Laws in the Nineteen West­ ern States 573 (1971) (hereinafter Hutchins). Montana’s pre-1950 users can therefore “insist that [Wyoming’s pre-1950 users] confine themselves strictly within the rights which the law gives them, that is, to the amount of water within the extent of their appropriation which they actually apply to some beneficial use.” 2 Kinney at 1366. That general proposition is undis­ puted; the dispute here is in its application. Is a switch to more efficient irrigation with less return flow within the extent of Wyoming’s pre-1950 users’ existing appropriative rights, or is it an improper enlargement of that right to the detriment of Montana’s pre-1950 water users? As the Special Master observed, the law of return flows is an unclear area of appropriation doctrine. Report 65 (citing Trelease, Reclamation Water Rights, 32 Rocky Mt. L. Rev. 6, 69 (1960)). The States have not directed us to any case on all fours with this one. Indeed, “[n]o west­ ern state court appears to have conclusively answered the question.” Report 65. Despite the lack of clarity, the Special Master found several reasons to conclude that Wyoming’s pre-1950 users may switch to sprinkler irrigation. He found that the scope of the original appropriative right includes such a change so long as no additional water is diverted from the 8 MONTANA v. WYOMING Opinion of the Court stream and the conserved water is used on the same acre­ age for the same agricultural purpose as before. We agree with the Special Master.5 1 First, although the no-injury rule prevents appropria­ tors from making certain water-right changes that would harm other appropriators, a change in irrigation methods does not appear to run afoul of that rule in Montana and Wyoming. See Because each new appropriator is entitled to the stream as it exists when he finds it, the general rule is that “if a change in these conditions is made by [a senior] appropriator, which interferes with the flow of the water to the material injury of [the junior appropriator’s] rights, he may justly complain.” 2 Kinney at 10. But the no-injury rule is not absolute; it generally con­ cerns changes in the location of the diversion and the place or purpose of use. Quigley v. McIntosh, 110 Mont. —————— 5 The lack of clarity in this area of water law highlights the sensitive nature of our inquiry and counsels caution. Our original jurisdiction over cases between States brings us this dispute between Montana and Wyoming about the meaning of their congressionally approved Yellow­ stone River Compact. See U. S. Const., Art. III, cl. 2; 28 U.S. C. Yet, because the Compact references and the parties direct us to principles of appropriation doctrine, we find ourselves immersed in state water law. See n. Our assessment of the scope of these water rights is merely a federal court’s description of state law. The highest court of each State, of course, remains “the final arbiter of what is state law.” West v. American Telephone & Telegraph 311 U.S. 223, 236 (190). We recognize that appropriation doctrine contin­ ues to evolve, and there are reasonable policy arguments in favor of both States’ positions here. But it is not this Court’s role to guide the development of state water regulation. See (“[I]t is the duty of [federal courts] in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of ‘general law’ ”). Our decision is not intended to restrict the States’ determina­ tion of their respective appropriation doctrines. Cite as: 563 U. S. (2011) 9 Opinion of the Court 95, 505, (190) (“[P]lace of diver­ sion, or place or purpose of use, may be changed only if others are not thereby injured” (internal quotation marks omitted)); see also 1 S. Wiel, Water Rights in the Western States §, p. 532 (3d ed. 1911) (hereinafter Wiel); Mont. Code Ann. (197); Wyo. Stat. Ann. §1–3–10 (1977). Accordingly, certain types of changes can occur even though they may harm downstream appropriators. See D. Getches, Water Law in a Nutshell 175 (th ed. 2009) (hereinafter Getches). For instance, an appropriator may increase his consumption by changing to a more water-intensive crop so long as he makes no change in acreage irrigated or amount of water diverted. See at 183; East Bench Irrig. 271 P.2d 9, 55 (195) (assuming that farm­ ers may “legally increase the quantity of water consumed in irrigating their lands by changing to more water con­ suming crops” and adding that “it would be difficult to prevent such increased consumptive use”). Ordinary, day-to-day operational changes or repairs also do not violate the no-injury rule. See, e.g., 1 Wiel at 51 (“Would the fact that my pump has for years dripped water onto a neighbor’s ground give him a right to say that my pump must go on leaking?”). Consumption can even be increased by adding farm acreage, so long as that was part of the plan from the start, and diligently pursued through the years. See Van Tassel Real Estate & Live Stock 9 Wyo. 333, 357–359, 5 P.2d 906, 913 (per curiam); 1 Hutchins 377–378; St. Onge v. Blakely, 22–2, 25 P. 532, Improvements to irrigation systems seem to be the sort of changes that fall outside the no-injury rule as it exists in Montana and Wyoming. Those changes are not to the “place of diversion, or place or purpose of use,” Quigley, 103 P. 2d, at and thus seem to be excluded, much like crop changes or day-to-day irrigation 10 MONTANA v. WYOMING Opinion of the Court adjustments or repairs. This is also consistent with the fact that by 1950 both States had statutes regulating certain changes to water rights, but neither required farmers to take official action before adjusting irrigation methods.6 See Report 69–70, 87; (they “do not generally have procedures for overseeing changes in water efficiencies stemming from crop shifts or irrigation im­ provements where there are no formal changes in the underlying water rights”). Like the Special Master, we find this to be persuasive evidence that the States consid­ ered such changes permissible. Montana argues that, regardless of the statutes, private lawsuits could be brought to challenge such efficiency changes. But it has not provided a single example from either State. Instead, Montana and Wyoming cases typi­ cally describe the no-injury rule as applying to changes in point of diversion, purpose of use, and place of use. See, e.g., 90 Mont. 3, 355– 357, ; Thayer v. Rawlins, 59 P.2d 951, 955 (Wyo. 1979). The abundance of litigation over such changes—and the absence of any litigation over the sort of change at issue here—strongly implies that irriga­ tion efficiency improvements do not violate the no-injury rule and were considered within the scope of the original appropriative right. 2 The doctrine of recapture also supports treating im­ provements in irrigation efficiency as within the original appropriative right. Under this doctrine, an appropriator who has diverted water for irrigation purposes has the right to recapture and reuse his own runoff and seepage —————— 6 Mont. Code Ann. (197); –01 (195) (water rights “cannot be detached from the lands, place or purpose for which they are acquired” outside of specific exceptions); see also 1885 Mont. Laws p. 131, Cite as: 563 U. S. (2011) 11 Opinion of the Court water before it escapes his control or his property.7 An appropriator is entitled to the “exclusive control [of his appropriated water] so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run-off and deep percolation, necessarily incident to practical irriga­ tion.” 263 U.S. 97, (192) (internal quotation marks omitted); see also Arizona Pub. Serv. 160 Ariz. 29, 37–38, 773 P.2d 8, 996–997 (19) (“No appropriator can compel any other appropriator to continue the waste of water which benefits the former. If the senior appropriator, through scientific and technical advances, can utilize his water so that none is wasted, no other appropriator can complain”). Montana contends that this rule does not apply when the runoff or seepage water would, if not recaptured, return to the same stream from which it was originally drawn. There is some support for Montana’s position— that a beneficial user may not reuse water at all, even while it is still on his property, if it otherwise would flow back to the same stream—especially in Utah and Colorado cases. See Deseret Irrig. at 180–182, 271 P. 2d, at 56–57; Estate of Steed v. New Escalante Irrig. 86 P.2d 1223, ; Comstock v. Ramsay, 55 Colo. 2, 252–258,8 But other authorities draw no such exception based on where the runoff or seepage is heading. See 2 Hutchins 580–582 —————— 7 And in some narrowly defined circumstances, he retains this right even after the water leaves his property. See 1 Wiel §8–0, at 37–3. 8 Colorado has a relatively unique doctrine of recapture. See Hoese, Comment, Recapture of Reclamation Project Ground Water, 53 Cal. L. Rev. 51, 5, n. 18 (1965) (noting the general doctrine of recapture, and adding that “[t]he Colorado rule, however, is to the contrary”); United 12 F.2d 850, (CA8 191) (allowing recap­ ture by the original appropriator under Nebraska law, and noting Colorado’s opposite rule). 12 MONTANA v. WYOMING Opinion of the Court (asserting that, even in Utah, “where the original appro­ priator retains possession and control of the waste and seepage water from irrigation of his lands, he is entitled to reuse these waters for his own benefit and need not return them to the channel from which they were diverted” (em­ phasis added)); Getches 139–15; Woolman v. Garringer, 1 Mont. 535 (1872). And Montana cites no case from either State here in which a court has recognized, much less found controlling, the idea that a water user may not reuse his own wastewater while it is still on his property simply because it otherwise would return to the original stream. In fact, Montana and Wyoming appear to apply, without qualification, the basic doctrine that the original appro­ priator may freely recapture his used water while it re­ mains on his property and reuse it for the same purpose on the same land. For example, in Binning v. Miller, 55 Wyo. 51, 102 P.2d 5 (190), a man was diverting water from a creek fed largely by irrigation runoff and seepage from Binning’s property. Although the court found that the man had a right to that water once Binning’s runoff and seepage had become a natural stream, it noted that his right remained subject to Binning’s right “to use the water above mentioned for beneficial purposes upon the land for which the seepage water was [originally] appro­ priated.” 7, 102 P. 2d, at 63. In a later case, the court explained that the man could not “secure a perma­ nent right to continue to receive the water” because Binning “might find better ways of utilizing the water on the same land so that less waste and seepage would oc­ cur.” P.2d 593, 601 (1957). Similarly, in the court held that Bower could appropriate water as it seeped across his property from the Big Horn Canal toward a nearby river. at 102–10, 307 P. 2d, at 602. The court Cite as: 563 U. S. (2011) 13 Opinion of the Court added, however, that Bower’s right was subject always to the Big Horn Canal’s right: “No appropriator can compel any other appropriator to continue the waste of water which benefits the former.” at P. 2d, at 601. Importantly, the court noted that “[i]f the senior appro­ priator by a different method of irrigation can so utilize his water that it is all consumed in transpiration and consumptive use and no waste water returns by seepage or percolation to the river, no other appropriator can complain.” Finally, in (Wyo. 10), water was seeping from Fuss’ property and into a pit in a public right of way. Franks was the first to appropriate the water from the pit. The court upheld Franks’ appro­ priation right because the water had already escaped from Fuss’ property. The court said that the “owner of land upon which seepage or waste water rises has the right to use and reuse—capture and recapture—such waste wa­ ters,” but only before the water escapes his land, and “for use only upon the land for which the water forming the seepage was originally appropriated.” (internal quotation marks omitted). Fuss thus had no superior right to the water that had left his property, and espe­ cially not for reuse on other lands. The law in Montana is similar. The Montana Supreme Court has explained that “the general rule is that the owner of the right to use the water—his private property while in his possession,—may collect it, recapture it, be­ fore it leaves his possession.” Rock Creek Ditch & Flume v. Miller, 93 Mont. 28, 17 P.2d 107, (1933); see also A. Stone, Montana Water Law 66 (199) (noting that, according to the “early cases,” while “the water is still seeping and running off one’s own land, the landowner is free to recapture and further use it”). The right of recapture discussed in these authorities is broad. As the Special Master recognized, the “language of 1 MONTANA v. WYOMING Opinion of the Court the Wyoming Supreme Court was expansive” in Binning, Bower, and Fuss, and “all appear to hold that an appropriator in Wyoming can increase his water use effi­ ciency by recovering runoff on his property or through other means so long as the increased consumption is on the same land to which the appropriative right attaches.” Report 81; see also 8–85; Case Note, Water Law—Reusing Irrigation Waste Water on Different Lands: A Warning to Get a New Permit, (Wyo. 10), 16 Land & Water L. Rev. 71, 76 (11) (concluding that in Wyoming, “a prior appropriator can at anytime, utilize irrigation methods that are totally consumptive, such as pumping the collected waste water back to the top of the field or installing a sprinkler system, thereby eliminating all waste of water”); Jones, Note, Rights of the Original Appropriator to Recapture Water Used in Irrigation, 11 Wyo. L. J. 39 (1956); Wille, Note, The Right to Use Waste Water Before It Re-enters the Stream, 12 Wyo. L. J. 7, 8 (1957). The Wyoming and Montana doctrine of recapture strongly suggests that improvements in irrigation effi­ ciency are within the original appropriative right of Wyo­ ming’s pre-1950 water users. By using sprinklers rather than flood irrigation, those water users effectively recap­ ture water. The sprinklers, by reducing loss due to seep­ age and runoff, operate much like, if more efficiently than, cruder recapture systems involving ditches or pits. They are simply different mechanisms for increasing the volume of water available to the crops without changing the amount of diversion. Binning, Bower, and Fuss expressly acknowledged that in such situations, lower appropriators who have perfected their own appropriative rights are nonetheless at the mercy of the property owners from which their water flows. See 55 Wyo., –77, 102 P.2d, at 63; –10, –602; 610 P. 2d, Cite as: 563 U. S. (2011) 15 Opinion of the Court 3 Our conclusion is consistent with that of water law scholars who have considered the specific question pre­ sented in this case. One scholar asserted: “[O]f course, increasing efficiency at one site may reduce the amount of water available to downstream users who may rely on return flows from other users. [Wyoming] law, however, does not preclude more efficient uses merely because a downstream user may be injured.” Squillace, A Critical Look at Wyoming Water Law, 2 Land & Water L. Rev. 307, 331 (19); see (“For example, a farmer who traditionally consumes only 50% of the water applied to his land is free to change his crop or method of applying water so as to increase his consumption to 60%”); see also (“[A] prior appropriator can at anytime instal[l] a sprinkler system, thereby eliminating all waste of water”). And a national hornbook on water law has observed: “The rule allowing recapture and reuse of salvaged water on the original land can result in more water being consumed. For instance, if a water user is con­ suming less than the permitted amount of water and plants a more water-intensive crop or puts in a more efficient irrigation system, most or all of the water that had previously been returned to the stream might be consumed. This can deprive other appro­ priators of water on which they depend but it is al­ lowed since it is technically within the terms of the original appropriation.” Getches 13–1. Montana has not identified any scholars who have reached the opposite conclusion. For all of these reasons, we hold that the doctrine of appropriation in Wyoming and Montana allows appro­ priators to improve their irrigation systems, even to the detriment of downstream appropriators. We readily ac­ 16 MONTANA v. WYOMING Opinion of the Court knowledge that this area of law is far from clear. See But the apparent scope of the no-injury rule in Wyoming and Montana, the doctrine of recapture and its broad reach in Wyoming and Montana case law, and the specific conclusions of water law scholars all point in the same direction, which also comports with the Special Master’s exhaustive discussion and findings. Accordingly, if Article V(A) simply incorporates background principles of appropriation law, it allows Wyoming’s pre-1950 water users to improve their irrigation efficiency, even to the detriment of Montana’s pre-1950 users. B Montana, however, takes another tack. It argues that even if background principles of appropriation law do not support its position, Article V(A) of the Compact does not protect the full scope of ordinary appropriative rights. Montana claims that the Compact’s definition of “benefi­ cial use” restricts the scope of protected pre-1950 appro­ priative rights to the net volume of water that was actu­ ally being consumed in 1950. We agree with the Special Master that this argument also fails. 1 Article V(A) protects “[a]ppropriative rights to the bene­ ficial uses of water.” “Beneficial use,” in turn, is de­ fined in Article II(H) as “that use by which the water supply of a drainage basin is depleted when usefully em­ ployed by the activities of man.” Montana contends that “beneficial use” is thus defined as the amount of depletion. According to Montana, any activity that increases pre-1950 water users’ depletions in Wyo­ ming beyond pre-1950 levels exceeds the scope of the appropriative rights that Article V(A) protects. See Brief for Montana 25–28. On this basis, Montana asserts that the Compact requires (subject to river conditions) that the Cite as: 563 U. S. (2011) 17 Opinion of the Court same quantity of water that was reaching Montana as of January 1, 1950, continue to do so. 2 We acknowledge that “beneficial use” refers to a type of use that involves some depletion, as all irrigation does. See Report 61. The part of the Compact’s definition of “beneficial use” that refers to depletion—“that use by which the water supply is depleted”—is fairly clear. It begins with “that use,” and the words that follow merely explain that “that use” must be a use that “deplete[s]” the “water supply.” Nothing in the language suggests that “beneficial use” means a measure of the amount of water depleted. A “beneficial use” within the meaning of the Compact, therefore, is a type of use that depletes the water supply. This plain reading makes sense in light of the circum­ stances existing in the signatory States when the Compact was drafted. At that time, Wyoming had a statutory preference for irrigation, a type of depletive use, over power generation, a nondepletive use. Wyo. Stat. Ann. §71–02 (195). It makes sense that the Compact would have been written to protect the irrigation uses that were legislatively favored and represented the predominant use of the Yellowstone River system. See Tr. of Oral Arg. 5– 7; (noting that the Compact recognizes “the great importance of water for irrigation in the signatory States”). Montana’s reading of the Compact, by contrast, does not follow from the text and would drastically redefine the term “beneficial use” from its longstanding meaning. The amount of water put to “beneficial use” has never been defined by net water consumption. The quantity of water “beneficially used” in irrigation, for example, has always included some measure of necessary loss such as runoff, evaporation, deep percolation, leakage, and seepage (re­ 18 MONTANA v. WYOMING Opinion of the Court gardless of whether any of it returns to the stream). So, water put to “[b]eneficial use is not what is actually con­ sumed, but what is actually necessary in good faith.” 1 Wiel §81, at 509; see also Trelease, The Concept of Rea­ sonable Beneficial Use in the Law of Surface Streams, 12 Wyo. L. J. 1, 10 (1957) (listing irrigation as a beneficial use and noting that “the method of application, by flood­ ing, channeling, or sprinkling, is immaterial”); J. Sax, B. J. Leshy, & R. Adams, Legal Control of Water Resources 131 (th ed. 2006) (discussing normal irrigation practices and observing that the amount of water put to beneficial use “is often considerably more than the quan­ tum actually consumed”). If the Compact’s definition of “beneficial use” were meant to drastically redefine the term into shorthand for net water consumption, we would expect far more clarity. For example, the Compact could have stated that it would protect “only ‘the amount of water consumed for a benefi­ cial use in each signatory state as of January 1, 1950.’ ” Report 60. Or it could have defined “beneficial use” as the “volume by which the water supply is depleted.” More­ over, if the Compact effected a dramatic reframing of ordinary appropriation principles, the rest of Article V(A), which expressly states that “the laws governing the acqui­ sition and use of water under the doctrine of appropria­ tion” control, would make little sense. We agree with the Special Master that the definition of beneficial use in the Compact is unremarkable. Arti­ cle V(A) does not change the scope of the pre-1950 appro­ priative rights that it protects in both States. 3 Finally, if Article V(A) were intended to guarantee Montana a set quantity of water, it could have done so as plainly as other compacts that do just that. By 1950, Wyoming itself had entered into at least one compact that Cite as: 563 U. S. (2011) 19 Opinion of the Court defined water rights in terms of depletion. The Colorado River Compact of 1922 apportioned 7,500,000 acre-feet of water per year for “the exclusive beneficial consumptive use” of several upstream States, including Wyoming. That compact specifically added that “[t]he States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre feet for any period of ten consecutive years” National Resources Planning Bd., Water Resources Comm., Inter­ state Water Compacts, 1785–191, p. 8 (192). See also Republican River Compact (193), Kan. Stat. Ann. (1997) (allocating water by the acre-foot for beneficial consumptive use in Kansas, Nebraska, and Colorado). And, even here in the Yellowstone River Com­ pact, Article V(B) unambiguously apportions the third tier of Yellowstone River system water by percentage. 65 Stat. 666. The notion that Article V(A) accomplishes essen- tially the same sort of depletive allocation with language that has a different and longstanding meaning is simply unpersuasive. * * * We conclude that the plain terms of the Compact protect ordinary “[a]ppropriative rights to the beneficial uses of [water] existing in each signatory State as of January 1, 1950.” Art. V(A), And the best evidence we have shows that the doctrine of appropriation in Wyoming and Montana allows appropriators to improve the efficiency of their irrigation systems, even to the detriment of down­ stream appropriators. Montana’s allegation that Wyo­ ming has breached Article V(A) of the Compact by allow­ ing its pre-1950 water users to increase their irrigation efficiency thus fails to state a claim. Accordingly, Mon­ tana’s first exception to the Special Master’s First Interim Report is overruled. It is so ordered. 20 MONTANA v. WYOMING Opinion of the Court JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 137, Orig. STATE OF MONTANA, PLAINTIFF v.

Justice Kennedy

concurring

ABF Freight System, Inc. v. NLRB

https://www.courtlistener.com/opinion/112925/abf-freight-system-inc-v-nlrb/

https://www.courtlistener.com/api/rest/v3/clusters/112925/

1993-018

I join the opinion of the Court and agree as well with the concerns expressed by JUSTICE SCALIA. Our law must not become so caught up in procedural niceties that it fails to sort out simple instances of right from wrong and give some redress for the latter. At the very least, when we proceed on the assumption that perjury was committed, the Government ought not to suggest, as it seemed to do here, that one who violates his testimonial oath is no worse than the student *326 who claims the dog ate his homework. See Tr. of Oral Arg. 42. The Board's opinions show that it can become quite exercised about trial-related misconduct that obstructs its own processes. See Lear-Siegler Management Service Corp., 306 N. L. R. B. 393, 394 (1992) (tolling the backpay award of an employee who threatened a witness, because such manipulation undermined "[t]he integrity of the Board's judicial process"). The Board seems more blithe, however, about the potential for dishonesty to disrupt the workplace. See Owens Illinois, Inc., 290 N. L. R. B. 1193 (1988) (reinstating and awarding backpay to an employee who lied under oath, because the employer "failed to meet its burden of establishing that [the employee] is unfit for further employment"). True, the gravest consequence of lying under oath is the affront to the law itself. But both employer and employee have reason to insist upon honesty in the resolution of disputes within the workplace itself. And this interest, too, is not beyond the Board's discretion to take into account in fashioning appropriate relief. JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, concurring in the judgment. It is ordinarily no proper concern of the judge how the Executive chooses to exercise discretion, so long as it be within the scope of what the law allows. For that reason, judicial dicta criticizing unintelligent (but nonetheless lawful) executive action are almost always inappropriate. The context changes, however, when the exercise of discretion relates to the integrity of the unitary adjudicative process that begins in an administrative hearing before a federal administrative law judge and ends in a judgment of this or some other federal court. Agency action or inaction that undermines and dishonors that process undermines and dishonors the legal system—undermines and dishonors the courts. Judges may properly protest, no matter how lawful *327 (and hence unreversible) the agency action or inaction may be. Such a protest is called for in the present case, in which the Board has displayed—from its initial decision through its defense of that decision in this Court—an unseemly toleration of perjury in the course of adjudicative proceedings. Michael Manso, the employee to whom the Board awarded backpay and reinstatement, testified in this case before Administrative Law Judge Walter H. Maloney the week of January 8, 1990. He was placed under oath—presumably standing up, his right hand raised, to respond to the form of oath set forth in the NLRB Judges' Manual § 17008 (1984): "Do you solemnly swear that the testimony which you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God?" He then proceeded to lie to the administrative tribunal, as he had earlier lied to his employer, concerning the reason he reported an hour late for work on August 17, 1989. He said that his car had broken down; that he called his wife, who came in her pajamas to pick him up; that he drove the rest of the way to work, with his wife, and was stopped for speeding along the way. The employer produced the officer that stopped him, who testified with assurance that Manso was all alone; that Manso mentioned no car trouble as an excuse for his speeding, but simply that he was late for work; and that the officer himself observed no car trouble. Hearsay evidence admitted (without objection) at the hearing showed that an ABF official, after Manso told his breakdown story on August 17, drove out to the portion of the highway where Manso said he had left the disabled vehicle, and found it not to be there. Administrative Law Judge Maloney found that "Manso was lying to the Respondent when he reported that his car had overheated and that he was late for work because of car trouble"—which meant, of course that he was also lying under oath when he repeated that story. ABF Freight System, Inc., 304 N. L. R. B. 585, 600 (1991). The ALJ did *328 not punish the false testimony, but his finding that the dismissal on August 17 was for cause had something of that effect, depriving Manso of reinstatement. The Board itself accepted the ALJ's finding that the carbreakdown story was a lie, but since it found that the real reason for the August 17 dismissal was neither Manso's lateness nor his dishonesty, but rather retaliation for his filing of an earlier unfair-labor-practice complaint, it ordered Manso's reinstatement. In stark contrast to today's opinion for the Court, the Board's opinion did not carefully weigh the pros and cons of using the Board's discretion in the conferral of relief to protect the integrity of its proceedings. It weighed those pros and cons not at all. Indeed, it mentioned the apparent perjury not at all, as though that is just part of the accepted background of Board proceedings, in no way worthy of note. That insouciance persisted even through the filing of the Board's brief in this Court, which makes the astounding statement that, in light of his "history of mistreatment," Manso's lying under oath, "though unjustifiable, is understandable." Brief for Respondent 22, n. 15. (In that context, of course, the plain meaning of "to understand" is "[t]o know and be tolerant or sympathetic toward." American Heritage Dictionary 1948 (3d ed. 1992).) Well, I am not understanding of lying under oath, whatever the motivation for it, and I do not believe that any law enforcement agency of the United States ought to be. Title 18 U.S. C. § 1621 provides: "Whoever— ". . . having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify . . . truly, . . . willfully and contrary to such oath states... any material matter which he does not believe to be true . . . . . . . . *329 "is guilty of perjury and shall . . . be fined not more than $2,000 or imprisoned not more than five years, or both. . . ." United States Attorneys doubtless cannot prosecute perjury indictments for all the lies told in the Nation's federal proceedings—not even, perhaps, for all the lies so cleanly nailed as was the one here. Not only, however, did the Board not refer the matter for prosecution, it did not impose, indeed did not even explicitly consider imposing, another sanction available to it (and not generally available to federal judges): denying discretionary relief because of the intentional subversion of the Board's processes. While the Court is correct that we have no power to compel the Board to apply such a sanction, nor even, perhaps, to require that the Board's opinion explicitly consider it, neither was the Board's action in this case as eminently reasonable as the Court makes it out to be. Nor does it deserve the characterization of being "well within [the Board's] broad discretion," ante, at 325 (emphasis added). In my estimation, it is at the very precipice of the tolerable, particularly as concerns the Board's failure even to consider and discuss the desirability of limiting its discretionary relief. Denying reinstatement would not, as the Court contends, involve the "unfairness of sanctioning Manso while indirectly rewarding [ABF] witnesses' lack of candor." Ibid. First of all, no "indirect reward" comes to ABF, which receives nothing from the Board. There is a world of difference between the mere inaction of failing to punish ABF for lying (which is the "indirect reward" that the Court fears) and the beneficence of conferring a nonmandated award upon Manso despite his lying (which is the much greater evil that the Court embraces). The principle that a perjurer should not be rewarded with a judgment—even a judgment otherwise deserved—where there is discretion to deny it, has a long and sensible tradition in the common law. The "unclean *330 hands" doctrine "closes the door of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant." Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814 (1945) (denying relief because of perjury). See H. McClintock, Principles of Equity § 26, p. 63, and n. 75 (2d ed. 1948). And the Board itself has sometimes applied this sanction in the past. See, e. g., D. V. Copying & Printing, Inc., 240 N. L. R. B. 1276 (1979); O'Donnell's Sea Grill, 55 N. L. R. B. 828 (1944). In any case, there is no realistic comparison between the ABF managers' disbelieved testimony concerning motivations for firing and Manso's crystalclear lie that he was where he was not. The latter is the stuff of perjury prosecutions; the former is not. The Court is correct that an absolute rule requiring the denial of discretionary relief for perjury "might force the Board to divert its attention from its primary mission and devote unnecessary time and energy to resolving collateral disputes about credibility." Ante, at 325. But intelligent and conscientious application of the Board's supposed rule permitting denial of discretionary relief for perjury would not have that effect—and such application should probably have occurred, and should surely have been considered, in an obvious case such as this. Nor am I as impressed as the Court is by the Board's assertion that "ordering effective relief in a case of this character promotes a vital public interest." Ibid. Assuredly it does, but plenty of effective relief was ordered here without adding Manso's reinstatement, including (1) the entry of a cease-and-desist order subjecting ABF to severe sanctions if it commits similar unfair labor practices in the future, (2) the award of backpay to Manso for the period from his unlawful discharge on June 19, 1989, to the date of his subsequent reinstatement, and (3) the posting of a notice on ABF's premises, reciting its commitments under the cease-and-desist order, and its commitment to give *331 Manso backpay. All of this would have made it clear enough to ABF and to ABF's employees that violating the National Labor Relations Act does not pay. Had the posted notice also included, instead of ABF's commitment to reinstate Manso (which is what the Board ordered), a statement to the effect that Manso's reinstatement would have been ordered but for his false testimony, then it also would have been made clear to ABF and to ABF's employees that perjury does not pay. I would have felt no need to write separately if I thought that, as the Court puts it, the Board has simply decided "to rely on `other civil and criminal remedies' for false testimony." Ibid. My impression, however, from the Board's opinion and from its presentation to this Court, is that it is really not very much concerned about false testimony. I concur in the judgment of the Court that the NLRB did nothing against the law, and regret that it missed an opportunity to do something for the law.

I join the opinion of the Court and agree as well with the concerns expressed by JUSTICE SCALIA. Our law must not become so caught up in procedural niceties that it fails to sort out simple instances of right from wrong and give some redress for the latter. At the very least, when we proceed on the assumption that perjury was committed, the Government ought not to suggest, as it seemed to do here, that one who violates his testimonial oath is no worse than the student *326 who claims the dog ate his homework. See Tr. of Oral Arg. 42. The Board's opinions show that it can become quite exercised about trial-related misconduct that obstructs its own processes. See Lear-Siegler Management Service Corp., 306 N. L. R. B. 393, 394 (1992) (tolling the backpay award of an employee who threatened a witness, because such manipulation undermined "[t]he integrity of the Board's judicial process"). The Board seems more blithe, however, about the potential for dishonesty to disrupt the workplace. See Owens Illinois, Inc., 290 N. L. R. B. 1193 (1988) (reinstating and awarding backpay to an employee who lied under oath, because the employer "failed to meet its burden of establishing that [the employee] is unfit for further employment"). True, the gravest consequence of lying under oath is the affront to the law itself. But both employer and employee have reason to insist upon honesty in the resolution of disputes within the workplace itself. And this interest, too, is not beyond the Board's discretion to take into account in fashioning appropriate relief. JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, concurring in the judgment. It is ordinarily no proper concern of the judge how the Executive chooses to exercise discretion, so long as it be within the scope of what the law allows. For that reason, judicial dicta criticizing unintelligent (but nonetheless lawful) executive action are almost always inappropriate. The context changes, however, when the exercise of discretion relates to the integrity of the unitary adjudicative process that begins in an administrative hearing before a federal administrative law judge and ends in a judgment of this or some other federal court. Agency action or inaction that undermines and dishonors that process undermines and dishonors the legal system—undermines and dishonors the courts. Judges may properly protest, no matter how lawful *327 (and hence unreversible) the agency action or inaction may be. Such a protest is called for in the present case, in which the Board has displayed—from its initial decision through its defense of that decision in this Court—an unseemly toleration of perjury in the course of adjudicative proceedings. Michael Manso, the employee to whom the Board awarded backpay and reinstatement, testified in this case before Administrative Law Judge Walter H. Maloney the week of January 8, 1990. He was placed under oath—presumably standing up, his right hand raised, to respond to the form of oath set forth in the NLRB Judges' Manual 17008 (1984): "Do you solemnly swear that the testimony which you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God?" He then proceeded to lie to the administrative tribunal, as he had earlier lied to his employer, concerning the reason he reported an hour late for work on August 17, 1989. He said that his car had broken down; that he called his wife, who came in her pajamas to pick him up; that he drove the rest of the way to work, with his wife, and was stopped for speeding along the way. The employer produced the officer that stopped him, who testified with assurance that Manso was all alone; that Manso mentioned no car trouble as an excuse for his speeding, but simply that he was late for work; and that the officer himself observed no car trouble. Hearsay evidence admitted (without objection) at the hearing showed that an ABF official, after Manso told his breakdown story on August 17, drove out to the portion of the highway where Manso said he had left the disabled vehicle, and found it not to be there. Administrative Law Judge Maloney found that "Manso was lying to the Respondent when he reported that his car had overheated and that he was late for work because of car trouble"—which meant, of course that he was also lying under oath when he repeated that story. ABF Freight System, Inc., 304 N. L. R. B. 585, 600 (1991). The ALJ did *328 not punish the false testimony, but his finding that the dismissal on August 17 was for cause had something of that effect, depriving Manso of reinstatement. The Board itself accepted the ALJ's finding that the carbreakdown story was a lie, but since it found that the real reason for the August 17 dismissal was neither Manso's lateness nor his dishonesty, but rather retaliation for his filing of an earlier unfair-labor-practice complaint, it ordered Manso's reinstatement. In stark contrast to today's opinion for the Court, the Board's opinion did not carefully weigh the pros and cons of using the Board's discretion in the conferral of relief to protect the integrity of its proceedings. It weighed those pros and cons not at all. Indeed, it mentioned the apparent perjury not at all, as though that is just part of the accepted background of Board proceedings, in no way worthy of note. That insouciance persisted even through the filing of the Board's brief in this Court, which makes the astounding statement that, in light of his "history of mistreatment," Manso's lying under oath, "though unjustifiable, is understandable." Brief for Respondent 22, n. 15. (In that context, of course, the plain meaning of "to understand" is "[t]o know and be tolerant or sympathetic toward." American Heritage Dictionary 1948 (3d ed. 1992).) Well, I am not understanding of lying under oath, whatever the motivation for it, and I do not believe that any law enforcement agency of the United States ought to be. Title 18 U.S. C. 1621 provides: "Whoever— ". having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify truly, willfully and contrary to such oath states. any material matter which he does not believe to be true *329 "is guilty of perjury and shall be fined not more than $2,000 or imprisoned not more than five years, or both." United States Attorneys doubtless cannot prosecute perjury indictments for all the lies told in the Nation's federal proceedings—not even, perhaps, for all the lies so cleanly nailed as was the one here. Not only, however, did the Board not refer the matter for prosecution, it did not impose, indeed did not even explicitly consider imposing, another sanction available to it (and not generally available to federal judges): denying discretionary relief because of the intentional subversion of the Board's processes. While the Court is correct that we have no power to compel the Board to apply such a sanction, nor even, perhaps, to require that the Board's opinion explicitly consider it, neither was the Board's action in this case as eminently reasonable as the Court makes it out to be. Nor does it deserve the characterization of being "well within [the Board's] broad discretion," ante, at 325 (emphasis added). In my estimation, it is at the very precipice of the tolerable, particularly as concerns the Board's failure even to consider and discuss the desirability of limiting its discretionary relief. Denying reinstatement would not, as the Court contends, involve the "unfairness of sanctioning Manso while indirectly rewarding [ABF] witnesses' lack of candor." First of all, no "indirect reward" comes to ABF, which receives nothing from the Board. There is a world of difference between the mere inaction of failing to punish ABF for lying (which is the "indirect reward" that the Court fears) and the beneficence of conferring a nonmandated award upon Manso despite his lying (which is the much greater evil that the Court embraces). The principle that a perjurer should not be rewarded with a judgment—even a judgment otherwise deserved—where there is discretion to deny it, has a long and sensible tradition in the common law. The "unclean *330 hands" doctrine "closes the door of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant." Precision Instrument Mfg. See H. McClintock, Principles of Equity 26, p. 63, and n. 75 (2d ed. 1948). And the Board itself has sometimes applied this sanction in the past. See, e. g., D. V. Copying & Printing, Inc., 240 N. L. R. B. 1276 (1979); O'Donnell's Sea Grill, 55 N. L. R. B. 828 (1944). In any case, there is no realistic comparison between the ABF managers' disbelieved testimony concerning motivations for firing and Manso's crystalclear lie that he was where he was not. The latter is the stuff of perjury prosecutions; the former is not. The Court is correct that an absolute rule requiring the denial of discretionary relief for perjury "might force the Board to divert its attention from its primary mission and devote unnecessary time and energy to resolving collateral disputes about credibility." Ante, at 325. But intelligent and conscientious application of the Board's supposed rule permitting denial of discretionary relief for perjury would not have that effect—and such application should probably have occurred, and should surely have been considered, in an obvious case such as this. Nor am I as impressed as the Court is by the Board's assertion that "ordering effective relief in a case of this character promotes a vital public interest." Assuredly it does, but plenty of effective relief was ordered here without adding Manso's reinstatement, including (1) the entry of a cease-and-desist order subjecting ABF to severe sanctions if it commits similar unfair labor practices in the future, (2) the award of backpay to Manso for the period from his unlawful discharge on June 19, 1989, to the date of his subsequent reinstatement, and (3) the posting of a notice on ABF's premises, reciting its commitments under the cease-and-desist order, and its commitment to give *331 Manso backpay. All of this would have made it clear enough to ABF and to ABF's employees that violating the National Labor Relations Act does not pay. Had the posted notice also included, instead of ABF's commitment to reinstate Manso (which is what the Board ordered), a statement to the effect that Manso's reinstatement would have been ordered but for his false testimony, then it also would have been made clear to ABF and to ABF's employees that perjury does not pay. I would have felt no need to write separately if I thought that, as the Court puts it, the Board has simply decided "to rely on `other civil and criminal remedies' for false testimony." My impression, however, from the Board's opinion and from its presentation to this Court, is that it is really not very much concerned about false testimony. I concur in the judgment of the Court that the NLRB did nothing against the law, and regret that it missed an opportunity to do something for the law.

per_curiam

per_curiam

Berry v. Cincinnati

https://www.courtlistener.com/opinion/108878/berry-v-cincinnati/

https://www.courtlistener.com/api/rest/v3/clusters/108878/

1973-009

Petitioner, who was serving a sentence for a misdemeanor offense when Argersinger v. Hamlin, 407 U.S. 25 (1972), was decided, sought relief in the state courts claiming that because Argersinger should be accorded retroactive effect and because his trial and sentencing were uncounseled, his conviction should be invalidated. The Supreme Court of Ohio refused to apply Argersinger to convictions occurring prior to that decision. City of Cincinnati v. Berry, 34 Ohio St. 2d 106, 296 N.E.2d 532 (1973). Petitioner was enlarged on bail pending action on his claim and faces reincarceration should the judgment of the Ohio courts remain undisturbed. The motion to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Ohio Supreme Court is reversed. Those convicted prior to the decision in Argersinger are entitled to the constitutional rule enunciated in that case, Kitchens v. Smith, 401 U.S. 847 (1971); Williams v. United States, 401 U.S. 646, 653 and n. 6 (1971) (opinion of WHITE, J.); Burgett *30 v. Texas, 389 U.S. 109, 114 (1967); cf. Adams v. Illinois, 405 U.S. 278 (1972), if they allege and prove a bona fide, existing case or controversy sufficient to invoke the jurisdiction of a federal court. Sibron v. New York, 392 U.S. 40, 50-58 (1968); Carafas v. LaVallee, 391 U.S. 234, 237-238 (1968); Ginsberg v. New York, 390 U.S. 629, 633-634, n. 2 (1968). So ordered

Petitioner, who was serving a sentence for a misdemeanor offense when was decided, sought relief in the state courts claiming that because Argersinger should be accorded retroactive effect and because his trial and sentencing were uncounseled, his conviction should be invalidated. The Supreme Court of Ohio refused to apply Argersinger to convictions occurring prior to that decision. City of Petitioner was enlarged on bail pending action on his claim and faces reincarceration should the judgment of the Ohio courts remain undisturbed. The motion to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Ohio Supreme Court is reversed. Those convicted prior to the decision in Argersinger are entitled to the constitutional rule enunciated in that case, ; ; Burgett ; cf. if they allege and prove a bona fide, existing case or controversy sufficient to invoke the jurisdiction of a federal court. ; ; So ordered

Justice Stevens

majority

Mine Workers Health and Retirement Funds v. Robinson

https://www.courtlistener.com/opinion/110664/mine-workers-health-and-retirement-funds-v-robinson/

https://www.courtlistener.com/api/rest/v3/clusters/110664/

1981-057

This case involves a discrimination between two classes of widows of coal miners who died prior to December 6, 1974 — those whose husbands were receiving pensions when they died and those whose husbands were still working although they were eligible for pensions. The 1974 collective-bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators' Association, Inc., increased the health benefits for widows in the former class but *564 made no increase for those in the latter class. The United States Court of Appeals for the District of Columbia Circuit held that this discrimination was arbitrary and therefore violated § 302(c)(5) of the Labor Management Relations Act of 1947 (LMRA).[1] 205 U. S. App. D. C. 330, 640 F.2d 416 (1981). We granted certiorari to decide whether § 302(c)(5) authorizes federal courts to review for reasonableness the provisions of a collective-bargaining agreement allocating health benefits among potential beneficiaries of an employee benefit trust fund. 454 U.S. 814. I A description of the origin of the discrimination may explain why the Court of Appeals considered it arbitrary. The *565 1950 collective-bargaining agreement between the union and the operators established a fund to provide pension, health, and other benefits for certain miners and their dependents. That agreement defined the operators' obligation to contribute to the fund but delegated the authority to define the amount of benefits and the conditions of eligibility to the trustees of the fund.[2] In 1967 the trustees adopted two resolutions governing benefits for widows. Under the first, a widow of a retired miner who was receiving a pension at the time of his death was entitled to a death benefit of $2,000 payable over a 2-year period, and a widow of a miner who was eligible for a pension but who was still working at the time of his death was entitled to a $5,000 benefit payable over a 5-year period.[3] The second resolution authorized hospital and medical-care benefits for unremarried widows of deceased miners while they were receiving the widows' benefit *566 authorized by the first resolution.[4] The effect of these two resolutions was to provide a greater health benefit for widows of working miners who were eligible for pensions than for widows of miners who were receiving pension benefits. In 1974, because of their concerns about compliance with minimum funding standards of the recently enacted Employee Retirement Income Security Act (ERISA), 88 Stat. 829, as amended, 29 U.S. C. § 1001 et seq. (1976 ed. and Supp. IV), and about the actuarial soundness of the 1950 fund, the union and the operators agreed to restructure the industry's benefit program. They agreed that the amount of benefits and the eligibility requirements, as well as the level of contributions, should be specified in their collective-bargaining agreement. They also decided to replace the single 1950 fund with four separate funds, two of which provided pension benefits while two others, the "1950 Benefit Trust" and the "1974 Benefit Trust," provided health and death benefits. The 1950 Benefit Trust, which is at issue in this case, extended lifetime health coverage to certain widows of miners who died before December 6, 1974, the effective date of the 1974 collective-bargaining agreement.[5] *567 During the 1974 negotiations, the union originally demanded that all unremarried widows who were entitled to health benefits for either two years or five years under the old plan be extended lifetime health coverage. Both the amount and the uncertainty of the cost of such coverage for these widows concerned the operators. Relatively early in the negotiations they nevertheless accepted the demand as it related to widows of miners who would die after the agreement became effective, but they objected to the requested increase for widows of already deceased miners. The operators estimated that the latter class consisted of between 25,000 and 50,000 widows, whereas the union's estimate was approximately 40,000. Of that total, about 10% were believed to be widows of miners who had been working at the time of their death, even though eligible for pensions, and thus already had been entitled to five years of health benefits. In the final stages of the 1974 negotiations, after a strike had begun, the operators made a package proposal to the union that excluded this smaller group of perhaps 4,000 or 5,000 widows from any increased health benefits. Besides making it possible to conclude an otherwise acceptable, complex collective-bargaining agreement and to avoid a prolonged strike, the union received no separately identifiable quid pro quo for the rejection of this portion of its demands. II Respondents are widows of coal miners who died in 1967 and 1971, respectively. Their husbands were over age 55, had been employed in the industry for over 20 years, and had spent most of their careers in the employ of contributing employers. *568 They were eligible for pensions but were still working at the time of their deaths. Under the 1950 plan, respondents were entitled to $5,000 death benefits and health benefits for five years. They received no additional benefits from the 1974 agreement. Had their husbands applied for the pensions for which they were eligible, they now would be entitled to lifetime health coverage. On their own behalf and as representatives of a class of similarly situated widows and dependents of deceased coal miners, respondents brought this action against the trustees of the funds in the United States District Court for the District of Columbia.[6] They alleged that the requirement that a miner actually be receiving a pension for which he was eligible at the time of his death in order to make his survivors eligible for lifetime health benefits has no rational relationship with the purposes of the trust funds and therefore was illegal under § 302 of the LMRA. They prayed that the requirement be declared null and void and that the trustees be ordered to pay to them health benefits retrospectively and prospectively. After certifying the respondents' class,[7] and after indicating that the plaintiffs had made a prima facie showing of arbitrariness, the court scheduled a hearing to give the petitioners an opportunity to prove that the discrimination against respondents was not arbitrary. At that hearing the District Court received documents prepared during the 1974 collective-bargaining *569 negotiations and heard the testimony of participants in those negotiations. Based on that evidence, the District Court found that "the question of whether or not to provide plaintiffs the benefits they now seek was the subject of explicit, informed and intense bargaining." App. to Pet. for Cert. 25a. The court rejected the argument that the eligibility requirement was arbitrary and capricious and held that "the trustees are bound to adhere to the terms of the agreement." Ibid. The court concluded: "Public policy dictates the limited role of courts in reviewing collectively bargained agreements. The familiar history of the anguished relations between the bargaining parties in this case only underscores the delicacy of the balance set in each agreement. Plaintiffs' relief, if indeed any is due, cannot come from the courts." Ibid. A divided panel of the Court of Appeals reversed. Relying on the § 302(c)(5) requirement that jointly administered pension trusts be maintained "for the sole and exclusive benefit of the employees of [the contributing] employer, and their families and dependents," the court held that any rule denying benefits to employees on whose behalf significant contributions had been made must be explained to its satisfaction, particularly if benefits were authorized for others who had worked a lesser period of time for contributing employers. 205 U. S. App. D. C., at 335, 640 F.2d, at 421. In this case, the trustees were unable to produce an acceptable explanation for the discrimination between widows of pensioners and widows of pension-eligible miners. Specifically, the court held that it was "not enough that the particular eligibility standards were adopted simply because that enabled resolution of a collective bargaining dispute." Id., at 338, 640 F.2d, at 424. Recognizing the legitimacy of a concern about actuarial soundness of pension trust funds, the court held that "financial integrity must be secured by methods dividing beneficiaries from nonbeneficiaries on lines reasonably *570 calculated to further the fund's purposes." Id., at 337-338, 640 F.2d, at 423-424. Judge Robb, in dissent, agreed with the reasoning of the District Court and added the observation that the discrimination against widows of active miners was rational because those widows had received a larger death benefit than widows of pensioners, and because their needs may have been lesser than those of the families of pensioners since their husbands had continued to work after they were eligible for pensions. III The Court of Appeals held that the requirement in § 302(c)(5) that an employee benefit trust fund be maintained "for the sole and exclusive benefit of the employees . . . and their families and dependents" means that eligibility rules fixed by a collective-bargaining agreement must meet a reasonableness standard. The statutory language hardly embodies this reasonableness requirement. Its plain meaning is simply that employer contributions to employee benefit trust funds must accrue to the benefit of employees and their families and dependents, to the exclusion of all others. Indeed, this has been this Court's consistent interpretation of § 302(c)(5). Just last Term, the Court reiterated that "the `sole purpose' of § 302(c)(5) is to ensure that employee benefit trust funds `are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them . . . . ' " NLRB v. Amax Coal Co., 453 U.S. 322, 331 (quoting 93 Cong. Rec. 4678 (1947), reprinted in 2 Legislative History of the Labor Management Relations Act, 1947, p. 1305 (Leg. Hist. LMRA)). See Arroyo v. United States, 359 U.S. 419, 425-426.[8] Accord, Walsh v. Schlecht, *571 429 U.S. 401, 410-411; Lewis v. Benedict Coal Corp., 361 U.S. 459, 474 (Frankfurter, J., dissenting). This reading is amply supported by the legislative history. See, e. g., 93 Cong. Rec. 4877 (1947), 2 Leg. Hist. LMRA, at 1312;[9] 93 Cong. Rec., at 4752-4753, 2 Leg. Hist. LMRA, at 1321-1322.[10] The section was meant to protect employees *572 from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to the private benefit of faithless union leaders. Proponents of this section were concerned that pension funds administered entirely by union leadership might serve as "war chests" to support union programs or political factions, or might become vehicles through which "racketeers" accepted bribes or extorted money from employers. Our interpretation of the purpose of the "sole and exclusive benefit" requirement is reinforced by the other requirements of § 302(c)(5). Section 302(c)(5) is an exception in a criminal statute that broadly prohibits employers from making direct or indirect payments to unions or union officials. Each of the specific conditions that must be satisfied to exempt employer contributions to pension funds from the criminal sanction is consistent with the nondiversion purpose. The fund must be established "for the sole and exclusive benefit" of employees and their families and dependents; contributions must be held in trust for that purpose and must be used exclusively for health, retirement, death, disability, or unemployment benefits; the basis for paying benefits must be specified in a written agreement; and the fund must be jointly administered by representatives of management and labor.[11] All the conditions in the section fortify the basic requirement that employer contributions be administered for the sole and exclusive benefit of employees. None of the conditions places any restriction on the allocation of the funds among the persons protected by § 302(c)(5). *573 The Court of Appeals did not attempt to ground its holding on the text or legislative history of § 302(c)(5). Rather, the court relied upon cases in which trustees of employee benefit trust funds, not the collective-bargaining agreement, fixed the eligibility rules and benefit levels. The Court of Appeals has held in those cases "that the Trustees have `full authority. . . with respect to questions of coverage and eligibility' and that the court's role is limited to ascertaining whether the Trustees' broad discretion has been abused by the adoption of arbitrary or capricious standards." Pete v. United Mine Workers of America Welfare & Retirement Fund of 1950, 171 U. S. App. D. C. 1, 9, 517 F.2d 1275, 1283 (1975) (en banc) (footnote omitted). Noting that "[t]he institutional arrangements creating this Fund and specifying the purposes to which it is to be devoted are cast expressly in fiduciary form," the court stated that "the Trustees, like all fiduciaries, are subject to judicial correction in a proper case upon a showing that they have acted arbitrarily or capriciously towards one of the persons to whom their trust obligations run." Kosty v. Lewis, 115 U. S. App. D. C. 343, 346, 319 F.2d 744, 747 (1963), cert. denied, 375 U.S. 964. Those cases, however, provide no support for the Court of Appeals' holding in this case.[12] The petitioner trustees were not given "full authority" to determine eligibility requirements and benefit levels, for these were fixed by the 1974 collective-bargaining agreement. By the terms of the trust created by that agreement, the trustees are obligated to enforce these *574 determinations unless modification is required to comply with applicable federal law.[13] The common law of trusts does not alter this obligation. See NLRB v. Amax Coal Co., 453 U. S., at 336-337; Restatement (Second) of Trusts § 164 (1959). Cf. 29 U.S. C. § 1104(a)(1)(D) (1976 ed., Supp. IV). Absent conflict with federal law, then, the trustees breached no fiduciary duties in administering the 1950 Benefit Trust in accordance with the terms established in the 1974 collective-bargaining agreement. Section 302(c)(5) plainly does not impose the Court of Appeals' reasonableness requirement, and respondents do not offer any alternative federal law to sustain the court's holding. There is no general requirement that the complex schedule of the various employee benefits must withstand judicial review under an undefined standard of reasonableness. This is no less true when the potential beneficiaries subject to discriminatory treatment are not members of the bargaining unit; we previously have recognized that former members and their families may suffer from discrimination in collective-bargaining agreements because the union need not "affirmatively. . . represent [them] or . . . take into account their interests in making bona fide economic decisions in behalf *575 of those whom it does represent." Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 181, n. 20.[14] Moreover, because finite contributions must be allocated among potential beneficiaries, inevitably financial and actuarial considerations sometimes will provide the only justification for an eligibility condition that discriminates between different classes of potential applicants for benefits. As long as such conditions do not violate federal law or policy, they are entitled to the same respect as any other provision in a collective-bargaining agreement. The substantive terms of jointly administered employee benefit plans must comply with the detailed and comprehensive standards of the ERISA. The terms of any collective-bargaining agreement must comply with federal laws that prohibit discrimination on grounds of race, color, religion, sex, or national origin;[15] that protect veterans;[16] that regulate certain industries;[17] and that preserve our competitive economy.[18] Obviously, an agreement must also be substantively consistent with the National Labor Relations Act, 29 U.S. C. § 151 et seq.[19] Moreover, in the collective-bargaining *576 process, the union must fairly represent the interests of all employees in the unit.[20] But when neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract.[21] The record in this case discloses no violation of § 302(c)(5) or of any other federal law. The judgment of the Court of Appeals is therefore reversed. It is so ordered.

This case involves a discrimination between two classes of widows of coal miners who died prior to December 6, 1974 — those whose husbands were receiving pensions when they died and those whose husbands were still working although they were eligible for pensions. The 1974 collective-bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators' Association, Inc., increased the health benefits for widows in the former class but *564 made no increase for those in the latter class. The United States Court of Appeals for the District of Columbia Circuit held that this discrimination was arbitrary and therefore violated 302(c)(5) of the Labor Management Relations Act of 1947 (LMRA).[1] 205 U. S. App. D. C. 330, We granted certiorari to decide whether 302(c)(5) authorizes federal courts to review for reasonableness the provisions of a collective-bargaining agreement allocating health benefits among potential beneficiaries of an employee benefit trust fund. I A description of the origin of the discrimination may explain why the Court of Appeals considered it arbitrary. The *565 1950 collective-bargaining agreement between the union and the operators established a fund to provide pension, health, and other benefits for certain miners and their dependents. That agreement defined the operators' obligation to contribute to the fund but delegated the authority to define the amount of benefits and the conditions of eligibility to the trustees of the fund.[2] In 1967 the trustees adopted two resolutions governing benefits for widows. Under the first, a widow of a retired miner who was receiving a pension at the time of his death was entitled to a death benefit of $2,000 payable over a 2-year period, and a widow of a miner who was eligible for a pension but who was still working at the time of his death was entitled to a $5,000 benefit payable over a 5-year period.[3] The second resolution authorized hospital and medical-care benefits for unremarried widows of deceased miners while they were receiving the widows' benefit *566 authorized by the first resolution.[4] The effect of these two resolutions was to provide a greater health benefit for widows of working miners who were eligible for pensions than for widows of miners who were receiving pension benefits. In 1974, because of their concerns about compliance with minimum funding standards of the recently enacted Employee Retirement Income Security Act (ERISA), as amended, 29 U.S. C. 1001 et seq. (1976 ed. and Supp. IV), and about the actuarial soundness of the 1950 fund, the union and the operators agreed to restructure the industry's benefit program. They agreed that the amount of benefits and the eligibility requirements, as well as the level of contributions, should be specified in their collective-bargaining agreement. They also decided to replace the single 1950 fund with four separate funds, two of which provided pension benefits while two others, the "1950 Benefit Trust" and the "1974 Benefit Trust," provided health and death benefits. The 1950 Benefit Trust, which is at issue in this case, extended lifetime health coverage to certain widows of miners who died before December 6, 1974, the effective date of the 1974 collective-bargaining agreement.[5] *567 During the 1974 negotiations, the union originally demanded that all unremarried widows who were entitled to health benefits for either two years or five years under the old plan be extended lifetime health coverage. Both the amount and the uncertainty of the cost of such coverage for these widows concerned the operators. Relatively early in the negotiations they nevertheless accepted the demand as it related to widows of miners who would die after the agreement became effective, but they objected to the requested increase for widows of already deceased miners. The operators estimated that the latter class consisted of between 25,000 and 50,000 widows, whereas the union's estimate was approximately 40,000. Of that total, about 10% were believed to be widows of miners who had been working at the time of their death, even though eligible for pensions, and thus already had been entitled to five years of health benefits. In the final stages of the 1974 negotiations, after a strike had begun, the operators made a package proposal to the union that excluded this smaller group of perhaps 4,000 or 5,000 widows from any increased health benefits. Besides making it possible to conclude an otherwise acceptable, complex collective-bargaining agreement and to avoid a prolonged strike, the union received no separately identifiable quid pro quo for the rejection of this portion of its demands. II Respondents are widows of coal miners who died in 1967 and 1971, respectively. Their husbands were over age 55, had been employed in the industry for over 20 years, and had spent most of their careers in the employ of contributing employers. *568 They were eligible for pensions but were still working at the time of their deaths. Under the 1950 plan, respondents were entitled to $5,000 death benefits and health benefits for five years. They received no additional benefits from the 1974 agreement. Had their husbands applied for the pensions for which they were eligible, they now would be entitled to lifetime health coverage. On their own behalf and as representatives of a class of similarly situated widows and dependents of deceased coal miners, respondents brought this action against the trustees of the funds in the United States District Court for the District of Columbia.[6] They alleged that the requirement that a miner actually be receiving a pension for which he was eligible at the time of his death in order to make his survivors eligible for lifetime health benefits has no rational relationship with the purposes of the trust funds and therefore was illegal under 302 of the LMRA. They prayed that the requirement be declared null and void and that the trustees be ordered to pay to them health benefits retrospectively and prospectively. After certifying the respondents' class,[7] and after indicating that the plaintiffs had made a prima facie showing of arbitrariness, the court scheduled a hearing to give the petitioners an opportunity to prove that the discrimination against respondents was not arbitrary. At that hearing the District Court received documents prepared during the 1974 collective-bargaining *569 negotiations and heard the testimony of participants in those negotiations. Based on that evidence, the District Court found that "the question of whether or not to provide plaintiffs the benefits they now seek was the subject of explicit, informed and intense bargaining." App. to Pet. for Cert. 25a. The court rejected the argument that the eligibility requirement was arbitrary and capricious and held that "the trustees are bound to adhere to the terms of the agreement." The court concluded: "Public policy dictates the limited role of courts in reviewing collectively bargained agreements. The familiar history of the anguished relations between the bargaining parties in this case only underscores the delicacy of the balance set in each agreement. Plaintiffs' relief, if indeed any is due, cannot come from the courts." A divided panel of the Court of Appeals reversed. Relying on the 302(c)(5) requirement that jointly administered pension trusts be maintained "for the sole and exclusive benefit of the employees of [the contributing] employer, and their families and dependents," the court held that any rule denying benefits to employees on whose behalf significant contributions had been made must be explained to its satisfaction, particularly if benefits were authorized for others who had worked a lesser period of time for contributing employers. 205 U. S. App. D. C., at In this case, the trustees were unable to produce an acceptable explanation for the discrimination between widows of pensioners and widows of pension-eligible miners. Specifically, the court held that it was "not enough that the particular eligibility standards were adopted simply because that enabled resolution of a collective bargaining dispute." Recognizing the legitimacy of a concern about actuarial soundness of pension trust funds, the court held that "financial integrity must be secured by methods dividing beneficiaries from nonbeneficiaries on lines reasonably *570 calculated to further the fund's purposes." at 337-, -424. Judge Robb, in dissent, agreed with the reasoning of the District Court and added the observation that the discrimination against widows of active miners was rational because those widows had received a larger death benefit than widows of pensioners, and because their needs may have been lesser than those of the families of pensioners since their husbands had continued to work after they were eligible for pensions. III The Court of Appeals held that the requirement in 302(c)(5) that an employee benefit trust fund be maintained "for the sole and exclusive benefit of the employees and their families and dependents" means that eligibility rules fixed by a collective-bargaining agreement must meet a reasonableness standard. The statutory language hardly embodies this reasonableness requirement. Its plain meaning is simply that employer contributions to employee benefit trust funds must accrue to the benefit of employees and their families and dependents, to the exclusion of all others. Indeed, this has been this Court's consistent interpretation of 302(c)(5). Just last Term, the Court reiterated that "the `sole purpose' of 302(c)(5) is to ensure that employee benefit trust funds `are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them ' " (quoting 93 Cong. Rec. 4678 (1947), reprinted in 2 Legislative History of the Labor Management Relations Act, 1947, p. 1305 (Leg. Hist. LMRA)). See[8] Accord, ; (Frankfurter, J., dissenting). This reading is amply supported by the legislative history. See, e. g., 93 Cong. Rec. 4877 (1947), 2 Leg. Hist. LMRA, at 1312;[9] 93 Cong. Rec., at 4752-4753, 2 Leg. Hist. LMRA, at 1321-1322.[10] The section was meant to protect employees *572 from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to the private benefit of faithless union leaders. Proponents of this section were concerned that pension funds administered entirely by union leadership might serve as "war chests" to support union programs or political factions, or might become vehicles through which "racketeers" accepted bribes or extorted money from employers. Our interpretation of the purpose of the "sole and exclusive benefit" requirement is reinforced by the other requirements of 302(c)(5). Section 302(c)(5) is an exception in a criminal statute that broadly prohibits employers from making direct or indirect payments to unions or union officials. Each of the specific conditions that must be satisfied to exempt employer contributions to pension funds from the criminal sanction is consistent with the nondiversion purpose. The fund must be established "for the sole and exclusive benefit" of employees and their families and dependents; contributions must be held in trust for that purpose and must be used exclusively for health, retirement, death, disability, or unemployment benefits; the basis for paying benefits must be specified in a written agreement; and the fund must be jointly administered by representatives of management and labor.[11] All the conditions in the section fortify the basic requirement that employer contributions be administered for the sole and exclusive benefit of employees. None of the conditions places any restriction on the allocation of the funds among the persons protected by 302(c)(5). *573 The Court of Appeals did not attempt to ground its holding on the text or legislative history of 302(c)(5). Rather, the court relied upon cases in which trustees of employee benefit trust funds, not the collective-bargaining agreement, fixed the eligibility rules and benefit levels. The Court of Appeals has held in those cases "that the Trustees have `full authority. with respect to questions of coverage and eligibility' and that the court's role is limited to ascertaining whether the Trustees' broad discretion has been abused by the adoption of arbitrary or capricious standards." Pete v. United Mine Workers of America Welfare & Retirement Fund of 1950, 171 U. S. App. D. C. 1, 9, (footnote omitted). Noting that "[t]he institutional arrangements creating this Fund and specifying the purposes to which it is to be devoted are cast expressly in fiduciary form," the court stated that "the Trustees, like all fiduciaries, are subject to judicial correction in a proper case upon a showing that they have acted arbitrarily or capriciously towards one of the persons to whom their trust obligations run." cert. denied, Those cases, however, provide no support for the Court of Appeals' holding in this case.[12] The petitioner trustees were not given "full authority" to determine eligibility requirements and benefit levels, for these were fixed by the 1974 collective-bargaining agreement. By the terms of the trust created by that agreement, the trustees are obligated to enforce these *574 determinations unless modification is required to comply with applicable federal law.[13] The common law of trusts does not alter this obligation. See -337; Restatement (Second) of Trusts 164 (1959). Cf. 29 U.S. C. 1104(a)(1)(D) (1976 ed., Supp. IV). Absent conflict with federal law, then, the trustees breached no fiduciary duties in administering the 1950 Benefit Trust in accordance with the terms established in the 1974 collective-bargaining agreement. Section 302(c)(5) plainly does not impose the Court of Appeals' reasonableness requirement, and respondents do not offer any alternative federal law to sustain the court's holding. There is no general requirement that the complex schedule of the various employee benefits must withstand judicial review under an undefined standard of reasonableness. This is no less true when the potential beneficiaries subject to discriminatory treatment are not members of the bargaining unit; we previously have recognized that former members and their families may suffer from discrimination in collective-bargaining agreements because the union need not "affirmatively. represent [them] or take into account their interests in making bona fide economic decisions in behalf *575 of those whom it does represent." Chemical & Alkali Workers v. Pittsburgh Plate Glass[14] Moreover, because finite contributions must be allocated among potential beneficiaries, inevitably financial and actuarial considerations sometimes will provide the only justification for an eligibility condition that discriminates between different classes of potential applicants for benefits. As long as such conditions do not violate federal law or policy, they are entitled to the same respect as any other provision in a collective-bargaining agreement. The substantive terms of jointly administered employee benefit plans must comply with the detailed and comprehensive standards of the ERISA. The terms of any collective-bargaining agreement must comply with federal laws that prohibit discrimination on grounds of race, color, religion, sex, or national origin;[15] that protect veterans;[16] that regulate certain industries;[17] and that preserve our competitive economy.[18] Obviously, an agreement must also be substantively consistent with the National Labor Relations Act, 29 U.S. C. 151 et seq.[19] Moreover, in the collective-bargaining *576 process, the union must fairly represent the interests of all employees in the unit.[20] But when neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract.[21] The record in this case discloses no violation of 302(c)(5) or of any other federal law. The judgment of the Court of Appeals is therefore reversed. It is so ordered.

Justice Rehnquist

dissenting

Antoine v. Washington

https://www.courtlistener.com/opinion/109193/antoine-v-washington/

https://www.courtlistener.com/api/rest/v3/clusters/109193/

1974-044

I do not agree with the Court's conclusion, ante, at 198, that "[c]ongressional approval was given" to the provisions of Art. 6 of the Agreement of May 9, 1891. The Supremacy Clause of the Constitution specifies both "Laws" and "Treaties" as enactments which are the supreme law of the land, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." If the game laws enacted by the State of Washington, containing customary provisions respecting seasons in which deer may be hunted, are invalid under the Supremacy Clause, they must be so by virtue of either a treaty or a law enacted by Congress. Concededly the Agreement of 1891, between Commissioners appointed by the President and members of the Colville Confederated Tribes was not a treaty; it was not intended to be such, and Congress had explicitly provided 20 years earlier that Indian tribes were not to be considered as independent nations with which the United States could deal under the treaty power. Washington's game laws, therefore, can only be invalid by reason of some law enacted by Congress. The Court's opinion refers us to the Act of Congress of June 21, 1906, which authorized monetary compensation to the Colvilles for the termination of the northern half of their reservation, and to a series of appropriation measures enacted during the following five years. There is, however, not one syllable in any of these Acts about Indian hunting or fishing rights, and it is fair to say that a member of Congress voting for or against them would not have had the remotest idea, even from the most careful of readings, that they would preserve Indian hunting and fishing rights. But because the language in the Act of 1906 states that it was enacted for the purpose of *214 "carrying out" the Agreement of 1891, and because language in subsequent appropriations Acts described the Act of 1906 as "ratifying" the Agreement of 1891, the Court concludes that Congress enacted as substantive law all 12 articles of the agreement. The Court relies on three earlier decisions of this Court as settling the proposition that Congress could legislatively ratify the 1891 Agreement, and that once accomplished, the "legislation ratifying the 1891 Agreement, constituted those provisions . . . `Laws of the United States . . . in Pursuance' of the Constitution, and the supreme law of the land." Ante, at 204. Congress could undoubtedly have enacted the provisions of the 1891 Agreement, but the critical question is whether it did so. Far from supporting the result reached by the Court in this case, the decisions of this Court in Choate v. Trapp, 224 U.S. 665 (1912), Perrin v. United States, 232 U.S. 478 (1914), and Dick v. United States, 208 U.S. 340 (1908), show instead how virtually devoid of support in either precedent or reason that result is. Each of those cases did involve an agreement negotiated between Commissioners representing the United States and Indian bands and tribes. Each of the agreements was held to have been ratified by Congress, and its substantive provisions to have thereby been made law. But the contrast with the manner in which Congress accomplished ratification in those cases, and the manner in which it acted in this case, is great indeed. Choate involved the Atoka Agreement negotiated between the Dawes Commission and Choctaw and Chickasaw representatives in 1897. The following year, Congress enacted the Curtis Act, 30 Stat. 495, the relevant provisions of § 29 of which are as follows: "That the agreement made by the Commission to the Five Civilized Tribes with commissions representing *215 the Choctaw and Chickasaw tribes of Indians on the twenty-third day of April, eighteen hundred and ninety-seven, as herein amended, is hereby ratified and confirmed. . . ." 30 Stat. 505. The section then proceeds to set out in haec verba the full text of the Atoka Agreement. Perrin v. United States, supra, involved the sale of liquor on ceded land, contrary to a prohibition contained in the cession agreement negotiated with the Sioux Indians in December 1892. That agreement was ratified by Congress in an Act of Aug. 15, 1894, 28 Stat. 286, 314, in which Congress used much the same method as it had employed in Choate: "SEC. 12. The following agreement, made by . . . is hereby accepted, ratified, and confirmed." Then followed, within the text of the Act of Congress itself, the articles of agreement in haec verba. Likewise, ratification of the agreement involved in Dick, supra, was accomplished by explicit statutory language and in haec verba incorporation of the articles of agreement. The Court today treats the Act of June 21, 1906, as simply another one of these instances in which Congress exercised its power to elevate mere agreements into the supreme law of the land. But it has done so with little attention to the critical issue, that of whether Congress actually exercised this power. Whereas the exercise was manifest in Choate, Perrin, and Dick, it is evidenced in the present case by nothing more than little scraps of language, ambiguous at best, in several Acts of Congress which contain not a word of the language of Art. 6 of the 1891 Agreement. I think consideration of all of the legislative materials, including the actual language used by Congress on the occasions when it spoke, rather than the elided excerpts relied upon by the Court, show that there was no ratification of Art. 6. *216 The original Colville Reservation was created by Executive Order in 1872. It consisted of over three million acres lying between the Okanogan and Columbia Rivers in the northern part of the State of Washington. In 1890 Congress created a Commission to "negotiate with said Colville and other bands of Indians on said reservation for the cession of such portion of said reservation as said Indians may be willing to dispose of, that the same may be open to white settlement." 26 Stat. 336, 355. The following year Commissioners appointed by the President met with representatives of the Colville Confederated Tribes. The Agreement of May 9, 1891, was executed to "go into effect from and after its approval by Congress." Article 1 of the Agreement provided that the northern half of the Colville Reservation, as it existed under the Executive Order of 1872, should be vacated. Article 5 provided that "in consideration of the cession surrender and relinquishment to the United States" of the northern half of the reservation, the United States would pay to the members of the tribe the sum of $1,500,000. Article 6, quoted in the opinion of the Court, contained provisions respecting tax exemption and Indian hunting and fishing rights. The Agreement was presented to the 52d Congress for ratification, but that body adamantly refused to approve it. The characterization in the Court's opinion of the Act of July 1, 1892, 27 Stat. 62, as the "first" in a series of statutes in which congressional approval was given to the Agreement of May 9, 1891, is a bit of historical legerdemain. Doubts were expressed as to whether the Indians had title to the reservation, since it had been created by Executive Order, thus again highlighting disagreement between the Executive and Legislative Branches as to how best to deal with the Indian tribes. *217 The Act of July 1, 1892, vacated the northern half of the Colville Reservation, as it had been established by President Grant, "notwithstanding any executive order or other proceeding whereby the same was set apart as a reservation for any Indians or bands of Indians," and declared that "the same shall be open to settlement and entry by the proclamation of the President of the United States and shall be disposed of under the general laws applicable to the disposition of public lands in the State of Washington." 27 Stat. 63. Section 4 of the Act tracked Art. 2 of the agreement, providing that each Indian then residing on the ceded portion of the reservation should be entitled to select 80 acres of the ceded land to be allotted to him in severalty. Section 5 of the Act tracked Art. 3 of the agreement, providing that Indians then residing in the ceded portion of the reservation should have a right to occupy and reside on its remaining parts, if they chose that in preference to receiving an allotment. Section 6 of the Act tracked Art. 4 of the agreement, and concerned various school and mill sites within the ceded portion. But conspicuous by their absence from the Act of July 1, 1892, were any provision for the payment of the $1,500,000, and any reference whatsoever to the Agreement's provisions dealing with hunting and fishing rights and immunity from taxation. Far from being the "first" of a series of Acts ratifying the entirety of the 1891 Agreement, the Act provided, in § 8: "That nothing herein contained shall be construed as recognizing title or ownership of said Indians to any part of the said Colville Reservation, whether that hereby restored to the public domain or that still reserved by the Government for their use and occupancy." 27 Stat. 64. The Act of July 1, 1892, became law without the signature *218 of President Harrison. Members of the Colville Confederated Tribes became justifiably alarmed that it had terminated the northern half of the reservation without authorizing the compensation for which they had bargained. After a 14-year campaign, described in detail in the report of Butler and Vale v. United States, 43 Ct. Cl. 497 (1908), they obtained congressional relief. But the relief embodied in the statutes enacted in 1906 and subsequent years did not amount to a full adoption and ratification of the 1891 Agreement. Rather, the description of the efforts to obtain relief, as well as the legislation which resulted, demonstrates that the Indians were concerned only with the compensation promised by the 1891 Agreement, and not with whatever ancillary rights were accorded by its Art. 6. The following excerpts from the Court of Claims opinion, which would appear to have the added authenticity that is given by contemporaneity, describe some of the events: "In pursuance of the [1891] agreement the lands so ceded were by act of Congress thrown open to public settlement; but no appropriation of money was made, and that part of the agreement providing for its payment was never complied with until the passage of the act of June 21, 1906. The Indians became anxious and, justly, quite solicitous Their appeals to the Congress subsequent to their agreement was met in 1892 by an adverse report from the Senate Committee on Indian Affairs, in which their right to compensation as per agreement was directly challenged by a most positive denial of their title to the lands in question. "In May, 1894, the said Colville Indians entered into a contract with Levi Maish, of Pennsylvania, and Hugh H. Gordon, of Georgia, attorneys and *219 counselors at law, by the terms of which the said attorneys were to prosecute their said claim against the United States and receive as compensation therefore 15 per cent of whatever amount they might recover. . . . Nothing was accomplished for the Indians under the Maish-Gordon contract. Not-withstanding its expiration, however, a number of attorneys claim to have rendered efficient services and to have accomplished, by the permission and authority of the Congress and the committees thereof, the final compliance with the agreement of 1891 and secured by the act of June 21, 1906, an appropriation covering the money consideration mentioned in said agreement." 43 Ct. Cl., at 514-515 (emphasis added). The agreement which formed the basis of the suit in Butler and Vale was, as just described, entered into between the Colvilles and two attorneys whom they retained to press their claim. It, too, recites that the Indians' concern was directed to the Government's failure to compensate them for the northern half of the reservation: " `And whereas the principal consideration to said Indians for the cession and surrender of said portion of the reservation was the express agreement upon the part of the United States Government to pay to said Indians `the sum of one million five hundred thousand dollars ($1,500,000) . . . ;' " `And whereas the United States Government has failed to comply with the terms of said agreement, and no provision has been made to pay said Indians the amount stipulated in the said agreement for the cession of said lands; " `And whereas the said Indians entered into said agreement with an implicit trust in the good faith *220 of the United States Government, and now most earnestly protest that their lands should not be taken from them without the payment of the just compensation stipulated in said agreement; ..... " `. . . The purpose of this agreement is to secure the presentation and prosecution of the claims of said Indians for payment for their interest in said ceded lands and to secure the services of said Maish and Gordon as counsel and attorneys for the prosecution and collection of said claims.' " Id., at 502 (emphasis added). Similarly, the letter of protest by the Chairman of the Colville Indian Commission, ante, at 199 n. 6, focused solely of Congress' failure to provide the Indians "the solace of compensation." As a result of the efforts of the Indians, their friends, and their attorneys, Congress ultimately acceded to their claim for compensation. It did so in the Act of June 21, 1906, which is the Indian Department Appropriations Act of 1906. With respect to the Colville Confederated Tribes, the Act provided as follows: "To carry into effect the agreement bearing date May ninth, eighteen hundred and ninety-one, . . . there shall be set aside and held in the Treasury of the United States for the use and benefit of said Indians, which shall at all times be subject to the appropriation of Congress and payment to said Indians, in full payment for one million five hundred thousand [1,500,000] acres of land opened to settlement by the Act of Congress, . . . approved July first, eighteen hundred and ninety-two, the sum of one million five hundred thousand dollars [$1,500,000] . . . ." 34 Stat. 377-378. *221 This Act is surely the major recognition by Congress of the claims of the Colvilles, and even with the most liberal construction I do not see how it can be read to do more than authorize the appropriation of $1,500,000 to effectuate the compensation article of the 1891 Agreement. Not a word is said about tax exemption, nor about hunting and fishing rights. The Court also relies on language in the Indian Department Appropriations Act of 1907, 34 Stat. 1015, and substantially identical language in each of the succeeding four annual Indian Department Appropriation Acts. After the usual language of appropriation, the Act goes on to provide: "In part payment to the Indians residing on the Colville Reservation for the cession by said Indians to the United States of one million five hundred thousand acres of land opened to settlement by an Act of Congress . . . approved July first, eighteen hundred and ninety-two, being a part of the full sum set aside and held in the Treasury of the United States in payment for said land under the terms of the Act approved June twenty-first, nineteen hundred and six, ratifying the agreement ceding said land to the United States under date of May ninth, eighteen hundred and ninety-one, three hundred thousand dollars . . . ." 34 Stat. 1050-1051. Thus the Court rests its decision in this case on two legislative pronouncements. The first is the 1906 Act authorizing payment of money to the Colvilles and reciting that the authorization was made to "carry into effect" the 1891 Agreement. The second is the series of Acts appropriating funds to cover the 1906 authorization and referring to the authorization as "ratifying the agreement ceding said land." On the basis of these Acts, both of which are part of the mechanism by which Congress expends *222 public funds, the Court has concluded that provisions of the 1891 agreement utterly unrelated to the payment of money became the supreme law of the land, even though there is no indication that the Colvilles sought any relief other than with respect to the Government's failure to pay compensation, or that Congress intended any relief affecting the use of land it quite plainly had determined should be returned to the public domain. A far more reasoned interpretation of these legislative materials would begin by placing them in the context of the Executive/Legislative dispute over Indian policy and authority. A year after the signing of the 1891 Agreement, Congress clearly indicated its doubt as to whether President Grant was justified in setting aside three million acres for the Colvilles, and as to whether his Executive Order actually conveyed title. In the Act of July 1, 1892, Congress chose to take what the Indians had expressed a willingness to surrender, but to give only part of what the Commissioners had agreed the Government should give in return. The Colvilles, after a 14-year battle in and around the legislative halls of Congress, obtained the monetary relief which they sought. Sympathy with their plight should not lead us now to distort what is on its face no more than congressional response to demands for payment into congressional enactment of the entire 1891 agreement. I would affirm the judgment of the Supreme Court of Washington.

I do not agree with the Court's conclusion, ante, at 198, that "[c]ongressional approval was given" to the provisions of Art. 6 of the Agreement of May 9, 1891. The Supremacy Clause of the Constitution specifies both "Laws" and "Treaties" as enactments which are the supreme law of the land, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." If the game laws enacted by the State of Washington, containing customary provisions respecting seasons in which deer may be hunted, are invalid under the Supremacy Clause, they must be so by virtue of either a treaty or a law enacted by Congress. Concededly the Agreement of 1891, between Commissioners appointed by the President and members of the Colville Confederated Tribes was not a treaty; it was not intended to be such, and Congress had explicitly provided 20 years earlier that Indian tribes were not to be considered as independent nations with which the United could deal under the treaty power. Washington's game laws, therefore, can only be invalid by reason of some law enacted by Congress. The Court's opinion refers us to the Act of Congress of June 21, 1906, which authorized monetary compensation to the Colvilles for the termination of the northern half of their reservation, and to a series of appropriation measures enacted during the following five years. There is, however, not one syllable in any of these Acts about Indian hunting or fishing rights, and it is fair to say that a member of Congress voting for or against them would not have had the remotest idea, even from the most careful of readings, that they would preserve Indian hunting and fishing rights. But because the language in the Act of 1906 states that it was enacted for the purpose of *214 "carrying out" the Agreement of 1891, and because language in subsequent appropriations Acts described the Act of 1906 as "ratifying" the Agreement of 1891, the Court concludes that Congress enacted as substantive law all 12 articles of the agreement. The Court relies on three earlier decisions of this Court as settling the proposition that Congress could legislatively ratify the 1891 Agreement, and that once accomplished, the "legislation ratifying the 1891 Agreement, constituted those provisions `Laws of the United in Pursuance' of the Constitution, and the supreme law of the land." Ante, at 204. Congress could undoubtedly have enacted the provisions of the 1891 Agreement, but the critical question is whether it did so. Far from supporting the result reached by the Court in this case, the decisions of this Court in and show instead how virtually devoid of support in either precedent or reason that result is. Each of those cases did involve an agreement negotiated between Commissioners representing the United and Indian bands and tribes. Each of the agreements was held to have been ratified by Congress, and its substantive provisions to have thereby been made law. But the contrast with the manner in which Congress accomplished ratification in those cases, and the manner in which it acted in this case, is great indeed. Choate involved the Atoka Agreement negotiated between the Dawes Commission and Choctaw and Chickasaw representatives in 1897. The following year, Congress enacted the Curtis Act, the relevant provisions of 29 of which are as follows: "That the agreement made by the Commission to the Five Civilized Tribes with commissions representing *215 the Choctaw and Chickasaw tribes of Indians on the twenty-third day of April, eighteen hundred and ninety-seven, as herein amended, is hereby ratified and confirmed." The section then proceeds to set out in haec verba the full text of the Atoka Agreement. involved the sale of liquor on ceded land, contrary to a prohibition contained in the cession agreement negotiated with the Sioux Indians in December 1892. That agreement was ratified by Congress in an Act of Aug. 15, 1894, 314, in which Congress used much the same method as it had employed in Choate: "SEC. 12. The following agreement, made by is hereby accepted, ratified, and confirmed." Then followed, within the text of the Act of Congress itself, the articles of agreement in haec verba. Likewise, ratification of the agreement involved in was accomplished by explicit statutory language and in haec verba incorporation of the articles of agreement. The Court today treats the Act of June 21, 1906, as simply another one of these instances in which Congress exercised its power to elevate mere agreements into the supreme law of the land. But it has done so with little attention to the critical issue, that of whether Congress actually exercised this power. Whereas the exercise was manifest in Choate, Perrin, and it is evidenced in the present case by nothing more than little scraps of language, ambiguous at best, in several Acts of Congress which contain not a word of the language of Art. 6 of the 1891 Agreement. I think consideration of all of the legislative materials, including the actual language used by Congress on the occasions when it spoke, rather than the elided excerpts relied upon by the Court, show that there was no ratification of Art. 6. *216 The original Colville Reservation was created by Executive Order in 1872. It consisted of over three million acres lying between the Okanogan and Columbia Rivers in the northern part of the State of Washington. In 1890 Congress created a Commission to "negotiate with said Colville and other bands of Indians on said reservation for the cession of such portion of said reservation as said Indians may be willing to dispose of, that the same may be open to white settlement." 355. The following year Commissioners appointed by the President met with representatives of the Colville Confederated Tribes. The Agreement of May 9, 1891, was executed to "go into effect from and after its approval by Congress." Article 1 of the Agreement provided that the northern half of the Colville Reservation, as it existed under the Executive Order of 1872, should be vacated. Article 5 provided that "in consideration of the cession surrender and relinquishment to the United " of the northern half of the reservation, the United would pay to the members of the tribe the sum of $1,500,000. Article 6, quoted in the opinion of the Court, contained provisions respecting tax exemption and Indian hunting and fishing rights. The Agreement was presented to the 52d Congress for ratification, but that body adamantly refused to approve it. The characterization in the Court's opinion of the Act of July 1, 1892, as the "first" in a series of statutes in which congressional approval was given to the Agreement of May 9, 1891, is a bit of historical legerdemain. Doubts were expressed as to whether the Indians had title to the reservation, since it had been created by Executive Order, thus again highlighting disagreement between the Executive and Legislative Branches as to how best to deal with the Indian tribes. *217 The Act of July 1, 1892, vacated the northern half of the Colville Reservation, as it had been established by President Grant, "notwithstanding any executive order or other proceeding whereby the same was set apart as a reservation for any Indians or bands of Indians," and declared that "the same shall be open to settlement and entry by the proclamation of the President of the United and shall be disposed of under the general laws applicable to the disposition of public lands in the State of Washington." Section 4 of the Act tracked Art. 2 of the agreement, providing that each Indian then residing on the ceded portion of the reservation should be entitled to select 80 acres of the ceded land to be allotted to him in severalty. Section 5 of the Act tracked Art. 3 of the agreement, providing that Indians then residing in the ceded portion of the reservation should have a right to occupy and reside on its remaining parts, if they chose that in preference to receiving an allotment. Section 6 of the Act tracked Art. 4 of the agreement, and concerned various school and mill sites within the ceded portion. But conspicuous by their absence from the Act of July 1, 1892, were any provision for the payment of the $1,500,000, and any reference whatsoever to the Agreement's provisions dealing with hunting and fishing rights and immunity from taxation. Far from being the "first" of a series of Acts ratifying the entirety of the 1891 Agreement, the Act provided, in 8: "That nothing herein contained shall be construed as recognizing title or ownership of said Indians to any part of the said Colville Reservation, whether that hereby restored to the public domain or that still reserved by the Government for their use and occupancy." The Act of July 1, 1892, became law without the signature *218 of President Harrison. Members of the Colville Confederated Tribes became justifiably alarmed that it had terminated the northern half of the reservation without authorizing the compensation for which they had bargained. After a 14-year campaign, described in detail in the report of Butler and Vale v. United they obtained congressional relief. But the relief embodied in the statutes enacted in 1906 and subsequent years did not amount to a full adoption and ratification of the 1891 Agreement. Rather, the description of the efforts to obtain relief, as well as the legislation which resulted, demonstrates that the Indians were concerned only with the compensation promised by the 1891 Agreement, and not with whatever ancillary rights were accorded by its Art. 6. The following excerpts from the Court of Claims opinion, which would appear to have the added authenticity that is given by contemporaneity, describe some of the events: "In pursuance of the [1891] agreement the lands so ceded were by act of Congress thrown open to public settlement; but no appropriation of money was made, and that part of the agreement providing for its payment was never complied with until the passage of the act of June 21, 1906. The Indians became anxious and, justly, quite solicitous Their appeals to the Congress subsequent to their agreement was met in 1892 by an adverse report from the Senate Committee on Indian Affairs, in which their right to compensation as per agreement was directly challenged by a most positive denial of their title to the lands in question. "In May, 1894, the said Colville Indians entered into a contract with Levi Maish, of Pennsylvania, and Hugh H. Gordon, of Georgia, attorneys and *219 counselors at law, by the terms of which the said attorneys were to prosecute their said claim against the United and receive as compensation therefore 15 per cent of whatever amount they might recover. Nothing was accomplished for the Indians under the Maish-Gordon contract. Not-withstanding its expiration, however, a number of attorneys claim to have rendered efficient services and to have accomplished, by the permission and authority of the Congress and the committees thereof, the final compliance with the agreement of 1891 and secured by the act of June 21, 1906, an appropriation covering the money consideration mentioned in said agreement." -515 The agreement which formed the basis of the suit in Butler and Vale was, as just described, entered into between the Colvilles and two attorneys whom they retained to press their claim. It, too, recites that the Indians' concern was directed to the Government's failure to compensate them for the northern half of the reservation: " `And whereas the principal consideration to said Indians for the cession and surrender of said portion of the reservation was the express agreement upon the part of the United Government to pay to said Indians `the sum of one million five hundred thousand dollars ($1,500,000) ;' " `And whereas the United Government has failed to comply with the terms of said agreement, and no provision has been made to pay said Indians the amount stipulated in the said agreement for the cession of said lands; " `And whereas the said Indians entered into said agreement with an implicit trust in the good faith *220 of the United Government, and now most earnestly protest that their lands should not be taken from them without the payment of the just compensation stipulated in said agreement; " `. The purpose of this agreement is to secure the presentation and prosecution of the claims of said Indians for payment for their interest in said ceded lands and to secure the services of said Maish and Gordon as counsel and attorneys for the prosecution and collection of said claims.' " Similarly, the letter of protest by the Chairman of the Colville Indian Commission, ante, at 199 n. 6, focused solely of Congress' failure to provide the Indians "the solace of compensation." As a result of the efforts of the Indians, their friends, and their attorneys, Congress ultimately acceded to their claim for compensation. It did so in the Act of June 21, 1906, which is the Indian Department Appropriations Act of 1906. With respect to the Colville Confederated Tribes, the Act provided as follows: "To carry into effect the agreement bearing date May ninth, eighteen hundred and ninety-one, there shall be set aside and held in the Treasury of the United for the use and benefit of said Indians, which shall at all times be subject to the appropriation of Congress and payment to said Indians, in full payment for one million five hundred thousand [1,500,000] acres of land opened to settlement by the Act of Congress, approved July first, eighteen hundred and ninety-two, the sum of one million five hundred thousand dollars [$1,500,000]" -378. *221 This Act is surely the major recognition by Congress of the claims of the Colvilles, and even with the most liberal construction I do not see how it can be read to do more than authorize the appropriation of $1,500,000 to effectuate the compensation article of the 1891 Agreement. Not a word is said about tax exemption, nor about hunting and fishing rights. The Court also relies on language in the Indian Department Appropriations Act of 1907, and substantially identical language in each of the succeeding four annual Indian Department Appropriation Acts. After the usual language of appropriation, the Act goes on to provide: "In part payment to the Indians residing on the Colville Reservation for the cession by said Indians to the United of one million five hundred thousand acres of land opened to settlement by an Act of Congress approved July first, eighteen hundred and ninety-two, being a part of the full sum set aside and held in the Treasury of the United in payment for said land under the terms of the Act approved June twenty-first, nineteen hundred and six, ratifying the agreement ceding said land to the United under date of May ninth, eighteen hundred and ninety-one, three hundred thousand dollars" -1051. Thus the Court rests its decision in this case on two legislative pronouncements. The first is the 1906 Act authorizing payment of money to the Colvilles and reciting that the authorization was made to "carry into effect" the 1891 Agreement. The second is the series of Acts appropriating funds to cover the 1906 authorization and referring to the authorization as "ratifying the agreement ceding said land." On the basis of these Acts, both of which are part of the mechanism by which Congress expends *222 public funds, the Court has concluded that provisions of the 1891 agreement utterly unrelated to the payment of money became the supreme law of the land, even though there is no indication that the Colvilles sought any relief other than with respect to the Government's failure to pay compensation, or that Congress intended any relief affecting the use of land it quite plainly had determined should be returned to the public domain. A far more reasoned interpretation of these legislative materials would begin by placing them in the context of the Executive/Legislative dispute over Indian policy and authority. A year after the signing of the 1891 Agreement, Congress clearly indicated its doubt as to whether President Grant was justified in setting aside three million acres for the Colvilles, and as to whether his Executive Order actually conveyed title. In the Act of July 1, 1892, Congress chose to take what the Indians had expressed a willingness to surrender, but to give only part of what the Commissioners had agreed the Government should give in return. The Colvilles, after a 14-year battle in and around the legislative halls of Congress, obtained the monetary relief which they sought. Sympathy with their plight should not lead us now to distort what is on its face no more than congressional response to demands for payment into congressional enactment of the entire 1891 agreement. I would affirm the judgment of the Supreme Court of Washington.

Justice Powell

dissenting

Ohio v. Kentucky

https://www.courtlistener.com/opinion/110172/ohio-v-kentucky/

https://www.courtlistener.com/api/rest/v3/clusters/110172/

1979-021

The Court today holds that the present boundary between Ohio and Kentucky is the low-water mark of the northern shore of the Ohio River when Kentucky was admitted to the Union in 1792. This curious result frustrates the terms of the Virginia Cession of 1784 that first established the Ohio-Kentucky border, ignores Mr. Chief Justice Marshall's construction of that grant in Handly's Lessee v. Anthony, 5 Wheat. 374 (1820), is contrary to common-law rules of riparian boundaries, and creates a largely unidentifiable border. Accordingly, I dissent. I In 1784, the Commonwealth of Virginia ceded to the United States all of its territory "to the northwest of the river Ohio." 1 Laws of the United States 472, 474 ( B. & D. ed. 1815). As this Court recently observed, the border question "`depends chiefly on the land law of Virginia, and on the cession made by that State to the United States.'" Ohio v. Kentucky, 410 U.S. 641, 645 (1973), quoting Handly's Lessee v. Anthony, supra, at 376. The 1784 Cession was construed definitively in Handly's Lessee, a case involving a dispute over land that was connected to Indiana when the Ohio River was low, but which was separated from Indiana when the water was high. The Court held that since the 1784 Cession required that the river remain within Kentucky, the proper *342 border was the low-water mark on the northern or northwestern shore. Consequently, the land in issue belonged to Indiana. Mr. Chief Justice Marshall, writing for the Court, pointed out that Virginia originally held the land that became both Indiana and Kentucky. Under the terms of the Virginia Cession, he stated: "These States, then, are to have the [Ohio] river itself, wherever that may be, for their boundary." 5 Wheat., at 379 (emphasis supplied). The Chief Justice found support for that conclusion in the original Cession: "[W]hen, as in this case, one State [Virginia] is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State [Indiana] extends to the river only. The river, however, is its boundary." Ibid. Such a riparian border, the Chief Justice emphasized, cannot be stationary over time. He wrote: "Any gradual accretion of land, then, on the Indiana side of the Ohio, would belong to Indiana. . . ." Id., at 380. This rule avoids the "inconvenience" of having a strip of land belonging to one State between another State and the river. "Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low water mark." Id., at 380-381. Because the boundary between Ohio and Kentucky was established by the same events that drew the line between Indiana and Kentucky, the holding in Handly's Lessee should control this case.[1] The Ohio River must remain the border between the States and within the domain of Kentucky. The *343 only way to ensure this result is to recognize the current low-water mark on the northern shore as the boundary. The approach taken by the Court today defeats the express terms of the Virginia Cession and ignores the explicit language of Mr. Chief Justice Marshall in Handly's Lessee.[2] The Court's holding that the boundary forever remains where the low-water mark on the northern shore of the river was in 1792, regardless of the river's movements over time, may produce bizarre results. If erosion and accretion were to shift the river to the north of the 1792 low-water mark, today's ruling would place the river entirely within the State of Ohio. The river would thus pass completely out of Kentucky's borders despite the holding in Handly's Lessee that the Ohio "[R]iver itself, wherever that may be, [is the] boundary." Id., at 379. The river would not be the boundary between the two States nor would Kentucky as successor to Virginia "retai[n] the river within its own domain" as Mr. Chief Justice Marshall declared that it must. Ibid. Similarly, if the river were to move to the south of the 1792 line, Ohio would be denied a shore on the river. Sensible people could not have intended such results, which not only would violate the plain language of the 1784 Cession, but also would mock the congressional resolution accepting Ohio into the Union as a State "bounded . . . on the South by the Ohio [R]iver." Ch. XL, 2 Stat. 173. II The Court, like the Special Master, disregards the teaching of Handly's Lessee. Instead, the Court relies heavily on the *344 decision in Indiana v. Kentucky, 136 U.S. 479 (1890), where Mr. Justice Field wrote that with respect to Kentucky's northern border, the State's "dominion and jurisdiction continue as they existed at the time she was admitted into the Union [1792], unaffected by the action of the forces of nature upon the course of the river." Id., at 508; ante, at 339. Kentucky argues, with some force, that the Court in 1890 found no change from the 1792 boundary because that case concerned the abandonment of a channel by the river, the sort of avulsive change in course that ordinarily does not alter riparian boundaries. There is no sign of an avulsive change in the length of the Ohio River at issue in this case. Moreover, Indiana v. Kentucky went on to find that Indiana had acquiesced in Kentucky's prescription of the land at issue. There has been no showing before us that Kentucky has acquiesced to Ohio's claim that the 1792 low-water mark establishes the entire boundary between the two States. See n. 3, infra. Absent such a showing, I do not believe the holding in Indiana v. Kentucky should be applied here. In any event, the force of Mr. Justice Field's opinion as a precedent may be questioned on its face. The decision cannot be reconciled with Handly's Lessee or with any normal or practical construction of Virginia's Cession in 1784. Indeed, the Court's opinion is essentially devoid of reasoning. After reproducing the passages in Handly's Lessee that establish that Kentucky must retain jurisdiction over the river, Mr. Justice Field states abruptly that, nevertheless, the boundary should be set at the low-water mark "when Kentucky became a State." 136 U.S., at 508. Mr. Justice Field apparently was unaware that, in effect, he was overruling the case on which he purported to rely. His conclusion is based simply on the startling view that when Kentucky "succeeded to the ancient right and possession of Virginia" in 1792, the new State received a boundary that "could not be affected by any subsequent change of the Ohio River." *345 Ibid. The opinion offers no further explanation for its holding. Of course, Kentucky did succeed to Virginia's rights in 1792. After the Cession of 1784, Virginia was entitled to have the river within its jurisdiction and to have the northern low-water mark as the boundary between it and that part of the Northwest Territory that became Ohio and Indiana. Kentucky's entry into the Union could not, without more, replace those rights with the immutable boundary found by Mr. Justice Field. Neither Mr. Justice Field in 1890 nor the State of Ohio in this litigation pointed to any suggestion by Congress in 1792 that it intended such a result. III Today's decision also contravenes the common law of riparian boundaries. In a dispute over the line between Arkansas and Tennessee along the Mississippi River, this Court noted: "[W]here running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream." Arkansas v. Tennessee, 246 U.S. 158, 173 (1918). See Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973). This rule has an intensely practical basis, since it is exceedingly difficult to establish where a river flowed many years ago. Physical evidence of the river's path is almost certain to wash away over time, and documentary evidence either may not survive or may not be reliable. The Court suggests that the Ohio-Kentucky boundary should not be determined by reference to previous river boundary decisions because the border in this case is not "the river itself, but . . . its northerly bank." Ante, at 338. This *346 contention contradicts Mr. Chief Justice Marshall's statement, quoted by the Court, that with respect to Kentucky's northern border, "`[t]he river, however, is its boundary.'" Ibid. In addition, the Court does not explain why established principles of riparian law are inapplicable simply because the northern low-water mark, not the center of the river, is the boundary. Since both lines shift over time, it is only sensible to adopt the common-law view that borders defined by those lines will move with them.[3] IV Following today's decision, all boundary matters between Ohio and Kentucky will turn on the location almost 200 years *347 ago of the northern low-water mark of the Ohio River. This cumbersome and uncertain outcome might be justified if it were dictated by unambiguous language in the Virginia Cession. But since the Court's decision is not only unworkable but also does violence to that deed as it has been construed by this Court, I cannot agree with its ruling today.

The Court today holds that the present boundary between Ohio and Kentucky is the low-water mark of the northern shore of the Ohio River when Kentucky was admitted to the Union in 1792. This curious result frustrates the terms of the Virginia Cession of 1784 that first established the Ohio-Kentucky border, ignores Mr. Chief Justice Marshall's construction of that grant in Handly's is contrary to common-law rules of riparian boundaries, and creates a largely unidentifiable border. Accordingly, I dissent. I In 1784, the Commonwealth of Virginia ceded to the United States all of its territory "to the northwest of the river Ohio." 1 Laws of the United States 472, 474 ( B. & D. ed. 1815). As this Court recently observed, the border question "`depends chiefly on the land law of Virginia, and on the cession made by that State to the United States.'" quoting Handly's The 1784 Cession was construed definitively in Handly's Lessee, a case involving a dispute over land that was connected to Indiana when the Ohio River was low, but which was separated from Indiana when the water was high. The Court held that since the 1784 Cession required that the river remain within Kentucky, the proper *342 border was the low-water mark on the northern or northwestern shore. Consequently, the land in issue belonged to Indiana. Mr. Chief Justice Marshall, writing for the Court, pointed out that Virginia originally held the land that became both Indiana and Kentucky. Under the terms of the Virginia Cession, he stated: "These States, then, are to have the [Ohio] river itself, wherever that may be, for their boundary." The Chief Justice found support for that conclusion in the original Cession: "[W]hen, as in this case, one State [Virginia] is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State [Indiana] extends to the river only. The river, however, is its boundary." Such a riparian border, the Chief Justice emphasized, cannot be stationary over time. He wrote: "Any gradual accretion of land, then, on the Indiana side of the Ohio, would belong to Indiana." This rule avoids the "inconvenience" of having a strip of land belonging to one State between another State and the river. "Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low water mark." -381. Because the boundary between Ohio and Kentucky was established by the same events that drew the line between Indiana and Kentucky, the holding in Handly's Lessee should control this case.[1] The Ohio River must remain the border between the States and within the domain of Kentucky. The *343 only way to ensure this result is to recognize the current low-water mark on the northern shore as the boundary. The approach taken by the Court today defeats the express terms of the Virginia Cession and ignores the explicit language of Mr. Chief Justice Marshall in Handly's Lessee.[2] The Court's holding that the boundary forever remains where the low-water mark on the northern shore of the river was in 1792, regardless of the river's movements over time, may produce bizarre results. If erosion and accretion were to shift the river to the north of the 1792 low-water mark, today's ruling would place the river entirely within the State of Ohio. The river would thus pass completely out of Kentucky's borders despite the holding in Handly's Lessee that the Ohio "[R]iver itself, wherever that may be, [is the] boundary." The river would not be the boundary between the two States nor would Kentucky as successor to Virginia "retai[n] the river within its own domain" as Mr. Chief Justice Marshall declared that it must. Similarly, if the river were to move to the south of the 1792 line, Ohio would be denied a shore on the river. Sensible people could not have intended such results, which not only would violate the plain language of the 1784 Cession, but also would mock the congressional resolution accepting Ohio into the Union as a State "bounded on the South by the Ohio [R]iver." Ch. XL, II The Court, like the Special Master, disregards the teaching of Handly's Lessee. Instead, the Court relies heavily on the *344 decision in where Mr. Justice Field wrote that with respect to Kentucky's northern border, the State's "dominion and jurisdiction continue as they existed at the time she was admitted into the Union [1792], unaffected by the action of the forces of nature upon the course of the river." ; ante, at 339. Kentucky argues, with some force, that the Court in 1890 found no change from the 1792 boundary because that case concerned the abandonment of a channel by the river, the sort of avulsive change in course that ordinarily does not alter riparian boundaries. There is no sign of an avulsive change in the length of the Ohio River at issue in this case. Moreover, went on to find that Indiana had acquiesced in Kentucky's prescription of the land at issue. There has been no showing before us that Kentucky has acquiesced to Ohio's claim that the 1792 low-water mark establishes the entire boundary between the two States. See n. 3, infra. Absent such a showing, I do not believe the holding in should be applied here. In any event, the force of Mr. Justice Field's opinion as a precedent may be questioned on its face. The decision cannot be reconciled with Handly's Lessee or with any normal or practical construction of Virginia's Cession in 1784. Indeed, the Court's opinion is essentially devoid of reasoning. After reproducing the passages in Handly's Lessee that establish that Kentucky must retain jurisdiction over the river, Mr. Justice Field states abruptly that, nevertheless, the boundary should be set at the low-water mark "when Kentucky became a State." 136 U.S., Mr. Justice Field apparently was unaware that, in effect, he was overruling the case on which he purported to rely. His conclusion is based simply on the startling view that when Kentucky "succeeded to the ancient right and possession of Virginia" in 1792, the new State received a boundary that "could not be affected by any subsequent change of the Ohio River." *345 The opinion offers no further explanation for its holding. Of course, Kentucky did succeed to Virginia's rights in 1792. After the Cession of 1784, Virginia was entitled to have the river within its jurisdiction and to have the northern low-water mark as the boundary between it and that part of the Northwest Territory that became Ohio and Indiana. Kentucky's entry into the Union could not, without more, replace those rights with the immutable boundary found by Mr. Justice Field. Neither Mr. Justice Field in 1890 nor the State of Ohio in this litigation pointed to any suggestion by Congress in 1792 that it intended such a result. III Today's decision also contravenes the common law of riparian boundaries. In a dispute over the line between Arkansas and Tennessee along the Mississippi River, this Court noted: "[W]here running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream." See Bonelli Cattle This rule has an intensely practical basis, since it is exceedingly difficult to establish where a river flowed many years ago. Physical evidence of the river's path is almost certain to wash away over time, and documentary evidence either may not survive or may not be reliable. The Court suggests that the Ohio-Kentucky boundary should not be determined by reference to previous river boundary decisions because the border in this case is not "the river itself, but its northerly bank." Ante, at 338. This *346 contention contradicts Mr. Chief Justice Marshall's statement, quoted by the Court, that with respect to Kentucky's northern border, "`[t]he river, however, is its boundary.'" In addition, the Court does not explain why established principles of riparian law are inapplicable simply because the northern low-water mark, not the center of the river, is the boundary. Since both lines shift over time, it is only sensible to adopt the common-law view that borders defined by those lines will move with them.[3] IV Following today's decision, all boundary matters between Ohio and Kentucky will turn on the location almost 200 years *347 ago of the northern low-water mark of the Ohio River. This cumbersome and uncertain outcome might be justified if it were dictated by unambiguous language in the Virginia Cession. But since the Court's decision is not only unworkable but also does violence to that deed as it has been construed by this Court, I cannot agree with its ruling today.

Justice O'Connor

majority

Western Air Lines, Inc. v. Board of Equalization of SD

https://www.courtlistener.com/opinion/111825/western-air-lines-inc-v-board-of-equalization-of-sd/

https://www.courtlistener.com/api/rest/v3/clusters/111825/

1986-038

In this case we consider whether the South Dakota Airline Flight Property Tax, S. D. Codified Laws, ch. 10-29 (1982), violates the Airport and Airway Improvement Act of 1982, 49 U.S. C. App. § 1513(d). We conclude that because the South Dakota Airline Flight Property Tax is an "in lieu tax which is wholly utilized for airport and aeronautical purposes," 49 U.S. C. App. § 1513(d)(3), the tax does not violate § 1513(d). I The federal provision at issue is part of a series of congressional actions dedicated to improving the Nation's air transportation system. Aloha Airlines, Inc. v. Director of *125 Taxation, 464 U.S. 7, 8-10 (1983). In 1970, following findings that "substantial expansion and improvement of the airport and airway system is [sic] required to meet the demands of interstate commerce, the postal service, and the national defense," H. R. Conf. Rep. No. 91-1074, p. 29 (1970), Congress required the Secretary of Transportation to prepare a plan for the development of public airports, and authorized the Secretary to make grants to States and localities for airport development. Airport and Airway Development Act of 1970, Pub. L. 91-258, 84 Stat. 219. Congress also established an Airport and Airway Trust Fund, maintained by federal aviation taxes, to finance airport development projects. § 208, 84 Stat. 250. Soon afterward, Congress acted to limit state taxation of air transportation. Concluding that state passenger use taxes placed "an unnecessary burden on interstate commerce," and had "a stifling effect on air transportation," H. R. Rep. No. 93-157, p. 4 (1973), Congress prohibited such taxes in the Airport Development Acceleration Act of 1973, Pub. L. 93-44, § 7(a), 87 Stat. 90. In the Airport and Airway Improvement Act of 1982, 96 Stat. 701, Congress added a § 7(d) to the Airway Development Acceleration Act of 1973, prohibiting the imposition of discriminatory property taxes on air carriers. That prohibition, as codified at 49 U.S. C. App. § 1513(d), reads: "(d) Acts which unreasonably burden and discriminate against interstate commerce; definitions "(1) The following acts unreasonably burden and discriminate against interstate commerce and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: "(A) assess air carrier transportation property at a value that has a higher ratio to the true market value of the air carrier transportation property than the ratio that the assessed value of other commercial and industrial property of the same type in the same assessment jurisdiction has to the true market value of the other commercial and industrial property; *126 "(B) levy or collect a tax on an assessment that may not be made under subparagraph (A) of this paragraph; or "(C) levy or collect an ad valorem property tax on air carrier transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction. "(2) In this subsection — ..... "(D) `commercial and industrial property' means property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial and industrial use and subject to a property tax levy; . . . ..... "(3) This subsection shall not apply to any in lieu tax which is wholly utilized for airport and aeronautical purposes." The South Dakota Airline Flight Property Tax, which appellants allege violates § 1513(d), was enacted in 1961. Flight property is defined as "all aircraft fully equipped ready for flight used in air commerce." S. D. Codified Laws § 10-29-1(4) (1982). The portion of the value of flight property subject to the tax is based on flight tonnage, flight time, and revenue ton miles, § 10-29-10, and this value is taxed at the "average mill rate," § 10-29-14. The statute also provides that "[t]he taxes imposed by this chapter shall be allocated by the secretary of revenue to the airports where such airlines companies make regularly scheduled landings and shall be used exclusively by such airports for airport purposes. . . ." § 10-29-15. The South Dakota statute provides that "[f]light property of airline companies operating in the state shall be assessed for the purpose of taxation by the department of revenue and not otherwise," § 10-29-2. Airline flight property is 1 of 10 specific categories of property that are centrally assessed for *127 purposes of taxation. (The other categories are certain property of railroads, private car-line companies, express companies, telephone companies, telegraph companies, electric, heating, water and gas companies, rural electric companies, rural water supply companies, and pipeline companies. See S. D. Codified Laws chs. 10-28 through 10-37.) Each of these categories was an exception from the general South Dakota scheme of local property tax assessment at the county level. S. D. Codified Laws § 10-3-16 (1982). In 1978, South Dakota exempted from ad valorem taxation all personal property that was locally rather than centrally assessed, § 10-4-6.1. In May 1983, appellants, four airline companies operating in South Dakota, paid their flight property taxes for the first six months of 1983 under protest. Appellants then sued the appropriate county treasurers for a refund. Appellants alleged that, because airline flight property was subject to taxation while most other personal property was exempt, the South Dakota flight property tax violated §§ 1513(d)(1)(A) and (C). In each case the county answered that the state flight property tax was "utilized wholly for airport and aeronautical purposes and is in lieu of property taxes and is therefore permitted by 49 U.S. C. [App. §] 1513(d)(3)." App. 10-11. Following an unsuccessful request to seven county boards of commissioners to abate and refund flight property taxes paid after the effective date of the Airport and Airway Improvement Act of 1982, appellants sued the county commissions for abatement and refund. App. 17. Finally, appellants appealed the property tax assessment to the South Dakota State Board of Equalization. The Board of Equalization unanimously denied the appeal, holding that "the airline flight property tax is in lieu of personal property tax and is totally utilized for airport and aeronautical purposes, therefore, in conformity with Section [1513](d)(3), this tax is lawful and not a violation of Federal law." Id., at 31. All the lawsuits described above were consolidated in the Circuit Court *128 for the Sixth Judicial Circuit in Hughes County, South Dakota. That court agreed with the counties and the Board of Equalization that the flight property tax was permitted under § 1513(d)(3). App. to Juris. Statement 19a-21a. On appeal, the Supreme Court of South Dakota disagreed with the conclusion that the flight property tax was authorized under § 1513(d). 372 N.W.2d 106 (1985). In order to be an "in lieu tax," the court reasoned, the flight property tax must be a substitute for another tax on flight property. "In the case at bar, however, the tax is not a substitute for an ad valorem personal property tax. It is in fact the first imposition of personal property tax on the airline flight property." Id., at 109. The State Supreme Court affirmed the Circuit Court, however, on an alternative ground. Under §§ 1513(d)(1)(A) and (C), the discriminatory nature of assessment ratios or tax rates applied to airline property is determined by comparison to the rations and ratios and rates applied to other "commercial and industrial property." "Commercial and industrial property" is defined as "property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial and industrial use and subject to a property tax levy." § 1513(d)(2)(D) (emphasis supplied). Because locally assessed personal property was not subject to a property tax levy, the State Supreme Court concluded that such property "cannot be included as commercial or industrial property for comparison under either" §§ 1513(d)(1)(A) or (C). 372 N.W.2d, at 110. Because appellants' claims under § 1513(d) were based on a comparison between flight property and property no longer subject to a tax levy, the court concluded that the claims must be rejected. South Dakota Supreme Court Justice Henderson concurred in the court's interpretation of the "in lieu tax" provision, but dissented from the court's interpretation of " `commercial and industrial property.' " The State Supreme Court holding, Justice Henderson observed, permitted " `greater discrimination *129 when the [commercial and industrial] property is completely exempt than when it is taxed, but at a lower rate.' " Id., at 112, quoting Northwest Airlines v. State Board of Equalization, 358 N.W.2d 515, 517 (1984). Such an interpretation of the federal antidiscrimination provisions was unreasonable, Justice Henderson concluded. "Since the level of assessment on commercial and industrial personal property is zero, the level of assessment of the airlines' personal property must be reduced to zero." 372 N.W.2d, at 112. In their jurisdictional statement to this Court appellants challenged the Supreme Court of South Dakota's interpretation of "commercial and industrial property" under § 1513(d). Appellees defended the judgment on the basis of the same reasoning used by the Supreme Court of South Dakota. We noted probable jurisdiction, 475 U.S. 1008 (1986). Following oral argument, we requested supplemental briefing from the parties, and called for the views of the United States, on the following questions: (1) Is the question whether a state tax is an "in lieu tax which is wholly utilized for airport and aeronautical purposes," one of state or federal law, and "(2) If federal law governs the question whether a tax is an in lieu tax under § 1513(d)(3), is the South Dakota Airline Flight Property Tax . . . an `in lieu tax' under § 1513(d)(3)?" 479 U.S. 958 (1986). Because our conclusions on these two questions resolve this case, we do not reach the question of the interpretation of "commercial and industrial property" under § 1513(d). II The parties and the United States agree that the question whether a state tax is an "in lieu tax which is wholly utilized for airport and aeronautical purposes," under § 1513 (d)(3), is ultimately one of federal law. The general principle that, absent a clear indication to the contrary, the meaning of words in a federal statute is a question of federal law has especial force when the purpose of the federal statute *130 is to eliminate discriminatory state treatment of interstate commerce. Indeed, in Aloha Airlines, Inc. v. Director of Taxation, 464 U. S., at 13-14, this Court held that a state legislature's characterization of a tax could not shield the tax from application of another subsection of § 1513. In the present case, as in Aloha Airlines, supra, we must examine the "purpose and effect" of the state tax in light of the policy embodied in the federal provision. Congress has given us little material with which to interpret the in lieu tax exception. The provision was added to the Act at conference, and there is no legislative history specifically discussing it.[*] The language of § 1513(d)(3) itself, *131 and the policies reflected in the Airport and Airway Improvement Act of 1982, however, lead us to the conclusion that the in lieu tax provision exempts the South Dakota Airline Flight Property Tax from the restrictions of § 1513(d). Section 1513(d)(3) uses two characteristics to identify a group of airline property taxes that are exempted from the restrictions of § 1513(d)(1). First, and perhaps most important, to fall under the protection of § 1513(d)(3) a tax must be "wholly utilized for airport and aeronautical purposes." Section 1513(d) is modeled on similar provisions in the 4-R Act and the Motor Carrier Act of 1980. See 49 U.S. C. §§ 11503, 11503a. The legislative history of the antidiscrimination provision in the 4-R Act demonstrates Congress' awareness that interstate carriers "are easy prey for State and local tax assessors" in that they are "nonvoting, often nonresident, targets for local taxation," who cannot easily remove themselves from the locality. S. Rep. No. 91-630, p. 3 (1969). The Department of Transportation had observed that "[s]tate and local governments derive substantial revenues from taxes on property owned by common carriers." Id., at 4. It is this temptation to excessively tax nonvoting, nonresident businesses in order to subsidize general welfare services for state residents that made federal legislation in this area necessary. The ability to use taxes levied on an interstate carrier to subsidize general welfare spending does not exist, of course, when the proceeds are allocated directly and entirely to the benefit of the carrier. Not only is the possibility of discriminatory benefits to state residents *132 eliminated, but also the specter of discriminatory burdens on the carrier is avoided by the recycling of the tax revenues into the specific facilities used by the carrier. Second, the phrase "in lieu tax" restricts the protection of § 1513(d)(3) to property taxes applied to the exclusion of any other tax on the property, in other words, to taxes applied in lieu of any other possible property tax. This requirement reinforces the policy reflected in the "wholly utilized for airport and aeronautical purposes" phrase. If the revenues collected pursuant to a property tax are specifically used for the benefit of those from whom the tax was collected, then, as explained above, the tax does not discriminatorily take from some in order to benefit others. If the same property is also subjected to tax used to subsidize general state expenditures, however, then the potential for abuse remains. Two individually nondiscriminatory taxes — a tax used for general welfare spending that meets the assessment ratio and rate restrictions of § 1513(d)(1), and a tax the proceeds of which are devoted entirely to the industry from which it is collected — obviously can become discriminatorily burdensome when combined. South Dakota levies a tax on airline flight property, the proceeds of which are wholly utilized for airport and aeronautical purposes. See S. D. Codified Laws § 10-29-15 (1982), quoted supra, at 126. The South Dakota Airline Flight Property Tax establishes a method of taxing a particular type of property to the exclusion of any other tax on that property. It therefore stands in lieu of the generally applicable ad valorem property tax that had been assessed on most other commercial and industrial property in the State at the time the airline flight property tax was established. The language and logic of § 1513(d)(3), therefore, lead to the conclusion that the South Dakota Airline Flight Property Tax falls under the in lieu tax exemption. Appellants argue, however, that these characteristics alone are not sufficient for a tax to be exempted by *133 § 1513(d)(3). Appellants advocate the position taken by the Supreme Court of South Dakota, that in order to be exempted under this provision a tax must take the place of another tax that historically had been applied to the airline property. The fact that a property tax is applied to the exclusion of all other property taxes is immaterial, appellants assert, unless some past tax was actually replaced by the present tax. Because South Dakota's taxation of airline flight property has always taken the form of the taxation scheme at issue in this case, appellants argue, the South Dakota Airline Flight Property Tax is not a true "in lieu tax." Admittedly the phrase "in lieu tax" is open to this interpretation. The illogical results of applying such an interpretation, however, argue strongly against the conclusion that Congress intended these results when it drafted § 1513(d)(3). Under the interpretation appellants advocate, the question whether a tax would be exempted under the in lieu tax provision would, at best, turn on historical fortuity. The identical taxation scheme South Dakota utilizes would be exempted under § 1513(d)(3) if South Dakota had at one time applied some other taxation scheme to airline flight property. Thus, if at one time the proceeds of the airline flight property tax had gone to general state expenditures rather than directly to the benefit of airports and airlines, the present tax would be exempted. Because South Dakota has always chosen to devote its taxes on airline flight property solely to the benefit of those airlines, it is not exempted, according to appellants. Why a State that has consistently chosen to levy, to the exclusion of all other property taxes, a tax utilized wholly for aeronautical purposes should be penalized for its consistency is unexplained. At worst, appellants' interpretation of § 1513(d)(3) would do no more than place a meaningless hurdle before state legislatures seeking to conform their tax scheme to the requirements of this provision. A closer examination of how this proposed replacement requirement would operate in *134 practice illustrates the point. Appellants do not suggest — and have no basis upon which to suggest — that in order to be an "in lieu tax" under § 1513(d)(3) the airline flight property tax must have replaced some other tax by the effective date of the federal provision. If one tax must replace another, therefore, the replacement could take place at any time. Moreover, it could not be a condition of § 1513(d)(3) coverage that the "in lieu tax" replace a tax that had met the antidiscrimination restrictions of § 1513(d). If the tax described in § 1513(d)(3) could replace only a tax that met all the requirements of § 1513(d)(1), then § 1513(d)(3) would not be an exemption at all; it would simply add a restriction on how the taxes could be spent with no corresponding latitude on how they may be collected. Ultimately, therefore, South Dakota could satisfy appellants' interpretation of § 1513(d)(3) by simply amending its tax code so that its airline flight property tax took some other form, then the following session substituting for that tax a tax utilized wholly for aeronautical purposes. This exercise of replacing one tax with another, while contributing somewhat to a state legislature's workload, would contribute nothing to the policies of the Airport and Airway Improvement Act. In sum, the language of § 1513(d)(3), while at first glance ambiguous, should be interpreted in a manner that comports with the policies of the Airport and Airway Improvement Act. That interpretation is that § 1513(d)(3) exempts from the antidiscrimination provisions of § 1513(d)(1) a tax on airline flight property, applied to the exclusion of any other possible tax on that property, the proceeds of which are wholly utilized for airport and aeronautical purposes. Because the South Dakota Airline Flight Property Tax fits this description, it does not violate the antidiscrimination provisions of § 1513(d). For this reason, the judgment of the Supreme Court of South Dakota is Affirmed.

In this case we consider whether the South Dakota Airline Flight Property Tax, S D Codified Laws, ch 10-29 (1982), violates the Airport and Airway Improvement Act of 1982, 49 US C App 1513(d) We conclude that because the South Dakota Airline Flight Property Tax is an "in lieu tax which is wholly utilized for airport and aeronautical purposes," 49 US C App 1513(d)(3), the tax does not violate 1513(d) I The federal provision at issue is part of a series of congressional actions dedicated to improving the Nation's air transportation system Aloha In 1970, following findings that "substantial expansion and improvement of the airport and airway system is [sic] required to meet the demands of interstate commerce, the postal service, and the national defense," H R Conf Rep No 91-1074, p 29 (1970), Congress required the Secretary of Transportation to prepare a plan for the development of public airports, and authorized the Secretary to make grants to States and localities for airport development Airport and Airway Development Act of 1970, Stat 219 Congress also established an Airport and Airway Trust Fund, maintained by federal aviation taxes, to finance airport development projects 208, Soon afterward, Congress acted to limit state taxation of air transportation Concluding that state passenger use taxes placed "an unnecessary burden on interstate commerce," and had "a stifling effect on air transportation," H R Rep No 93-157, p 4 (1973), Congress prohibited such taxes in the Airport Development Acceleration Act of 1973, Pub L 93-44, 7(a), In the Airport and Airway Improvement Act of 1982, Congress added a 7(d) to the Airway Development Acceleration Act of 1973, prohibiting the imposition of discriminatory property taxes on air carriers That prohibition, as codified 9 US C App 1513(d), reads: "(d) Acts which unreasonably burden and discriminate against interstate commerce; definitions "(1) The following acts unreasonably burden and discriminate against interstate commerce and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: "(A) assess air carrier transportation property at a value that has a higher ratio to the true market value of the air carrier transportation property than the ratio that the assessed value of other commercial and industrial property of the same type in the same assessment jurisdiction has to the true market value of the other commercial and industrial property; *126 "(B) levy or collect a tax on an assessment that may not be made under subparagraph (A) of this paragraph; or "(C) levy or collect an ad valorem property tax on air carrier transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction "(2) In this subsection — "(D) `commercial and industrial property' means property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial and industrial use and subject to a property tax levy; "(3) This subsection shall not apply to any in lieu tax which is wholly utilized for airport and aeronautical purposes" The South Dakota Airline Flight Property Tax, which appellants allege violates 1513(d), was enacted in 1961 Flight property is defined as "all aircraft fully equipped ready for flight used in air commerce" S D Codified Laws 10-29-1(4) (1982) The portion of the value of flight property subject to the tax is based on flight tonnage, flight time, and revenue ton miles, 10-29-10, and this value is taxed at the "average mill rate," 10-29-14 The statute also provides that "[t]he taxes imposed by this chapter shall be allocated by the secretary of revenue to the airports where such airlines companies make regularly scheduled landings and shall be used exclusively by such airports for airport purposes " 10-29-15 The South Dakota statute provides that "[f]light property of airline companies operating in the state shall be assessed for the purpose of taxation by the department of revenue and not otherwise," 10-29-2 Airline flight property is 1 of 10 specific categories of property that are centrally assessed for *127 purposes of taxation (The other categories are certain property of railroads, private car-line companies, express companies, telephone companies, telegraph companies, electric, heating, water and gas companies, rural electric companies, rural water supply companies, and pipeline companies See S D Codified Laws chs 10-28 through 10-37) Each of these categories was an exception from the general South Dakota scheme of local property tax assessment at the county level S D Codified Laws 10-3-16 (1982) In 1978, South Dakota exempted from ad valorem taxation all personal property that was locally rather than centrally assessed, 10-4-61 In May 1983, appellants, four airline companies operating in South Dakota, paid their flight property taxes for the first six months of 1983 under protest Appellants then sued the appropriate county treasurers for a refund Appellants alleged that, because airline flight property was subject to taxation while most other personal property was exempt, the South Dakota flight property tax violated 1513(d)(1)(A) and (C) In each case the county answered that the state flight property tax was "utilized wholly for airport and aeronautical purposes and is in lieu of property taxes and is therefore permitted by 49 US C [App ] 1513(d)(3)" App 10-11 Following an unsuccessful request to seven county boards of commissioners to abate and refund flight property taxes paid after the effective date of the Airport and Airway Improvement Act of 1982, appellants sued the county commissions for abatement and refund App 17 Finally, appellants appealed the property tax assessment to the South Dakota State Board of Equalization The Board of Equalization unanimously denied the appeal, holding that "the airline flight property tax is in lieu of personal property tax and is totally utilized for airport and aeronautical purposes, therefore, in conformity with Section [1513](d)(3), this tax is lawful and not a violation of Federal law" All the lawsuits described above were consolidated in the Circuit Court *128 for the Sixth Judicial Circuit in Hughes County, South Dakota That court agreed with the counties and the Board of Equalization that the flight property tax was permitted under 1513(d)(3) App to Juris Statement 19a-21a On appeal, the Supreme Court of South Dakota disagreed with the conclusion that the flight property tax was authorized under 1513(d) In order to be an "in lieu tax," the court reasoned, the flight property tax must be a substitute for another tax on flight property "In the case at bar, however, the tax is not a substitute for an ad valorem personal property tax It is in fact the first imposition of personal property tax on the airline flight property" The State Supreme Court affirmed the Circuit Court, however, on an alternative ground Under 1513(d)(1)(A) and (C), the discriminatory nature of assessment ratios or tax rates applied to airline property is determined by comparison to the rations and ratios and rates applied to other "commercial and industrial property" "Commercial and industrial property" is defined as "property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial and industrial use and subject to a property tax levy" 1513(d)(2)(D) (emphasis supplied) Because locally assessed personal property was not subject to a property tax levy, the State Supreme Court concluded that such property "cannot be included as commercial or industrial property for comparison under either" 1513(d)(1)(A) or (C) Because appellants' claims under 1513(d) were based on a comparison between flight property and property no longer subject to a tax levy, the court concluded that the claims must be rejected South Dakota Supreme Court Justice Henderson concurred in the court's interpretation of the "in lieu tax" provision, but dissented from the court's interpretation of " `commercial and industrial property' " The State Supreme Court holding, Justice Henderson observed, permitted " `greater discrimination *129 when the [commercial and industrial] property is completely exempt than when it is taxed, but at a lower rate' " quoting Northwest v State Board of Equalization, 358 NW2d 515, Such an interpretation of the federal antidiscrimination provisions was unreasonable, Justice Henderson concluded "Since the level of assessment on commercial and industrial personal property is zero, the level of assessment of the airlines' personal property must be reduced to zero" 372 NW2d, In their jurisdictional statement to this Court appellants challenged the Supreme Court of South Dakota's interpretation of "commercial and industrial property" under 1513(d) Appellees defended the judgment on the basis of the same reasoning used by the Supreme Court of South Dakota We noted probable jurisdiction, 475 US 1008 Following oral argument, we requested supplemental briefing from the parties, and called for the views of the United States, on the following questions: (1) Is the question whether a state tax is an "in lieu tax which is wholly utilized for airport and aeronautical purposes," one of state or federal law, and "(2) If federal law governs the question whether a tax is an in lieu tax under 1513(d)(3), is the South Dakota Airline Flight Property Tax an `in lieu tax' under 1513(d)(3)?" 479 US 958 Because our conclusions on these two questions resolve this case, we do not reach the question of the interpretation of "commercial and industrial property" under 1513(d) II The parties and the United States agree that the question whether a state tax is an "in lieu tax which is wholly utilized for airport and aeronautical purposes," under 1513 (d)(3), is ultimately one of federal law The general principle that, absent a clear indication to the contrary, the meaning of words in a federal statute is a question of federal law has especial force when the purpose of the federal statute *130 is to eliminate discriminatory state treatment of interstate commerce Indeed, in Aloha Inc v Director of 464 U S, at 13-14, this Court held that a state legislature's characterization of a tax could not shield the tax from application of another subsection of 1513 In the present case, as in Aloha we must examine the "purpose and effect" of the state tax in light of the policy embodied in the federal provision Congress has given us little material with which to interpret the in lieu tax exception The provision was added to the Act at conference, and there is no legislative history specifically discussing it[*] The language of 1513(d)(3) itself, *131 and the policies reflected in the Airport and Airway Improvement Act of 1982, however, lead us to the conclusion that the in lieu tax provision exempts the South Dakota Airline Flight Property Tax from the restrictions of 1513(d) Section 1513(d)(3) uses two characteristics to identify a group of airline property taxes that are exempted from the restrictions of 1513(d)(1) First, and perhaps most important, to fall under the protection of 1513(d)(3) a tax must be "wholly utilized for airport and aeronautical purposes" Section 1513(d) is modeled on similar provisions in the 4-R Act and the Motor Carrier Act of 1980 See 49 US C 11503, 11503a The legislative history of the antidiscrimination provision in the 4-R Act demonstrates Congress' awareness that interstate carriers "are easy prey for State and local tax assessors" in that they are "nonvoting, often nonresident, targets for local taxation," who cannot easily remove themselves from the locality S Rep No 91-630, p 3 (1969) The Department of Transportation had observed that "[s]tate and local governments derive substantial revenues from taxes on property owned by common carriers" It is this temptation to excessively tax nonvoting, nonresident businesses in order to subsidize general welfare services for state residents that made federal legislation in this area necessary The ability to use taxes levied on an interstate carrier to subsidize general welfare spending does not exist, of course, when the proceeds are allocated directly and entirely to the benefit of the carrier Not only is the possibility of discriminatory benefits to state residents *132 eliminated, but also the specter of discriminatory burdens on the carrier is avoided by the recycling of the tax revenues into the specific facilities used by the carrier Second, the phrase "in lieu tax" restricts the protection of 1513(d)(3) to property taxes applied to the exclusion of any other tax on the property, in other words, to taxes applied in lieu of any other possible property tax This requirement reinforces the policy reflected in the "wholly utilized for airport and aeronautical purposes" phrase If the revenues collected pursuant to a property tax are specifically used for the benefit of those from whom the tax was collected, then, as explained above, the tax does not discriminatorily take from some in order to benefit others If the same property is also subjected to tax used to subsidize general state expenditures, however, then the potential for abuse remains Two individually nondiscriminatory taxes — a tax used for general welfare spending that meets the assessment ratio and rate restrictions of 1513(d)(1), and a tax the proceeds of which are devoted entirely to the industry from which it is collected — obviously can become discriminatorily burdensome when combined South Dakota levies a tax on airline flight property, the proceeds of which are wholly utilized for airport and aeronautical purposes See S D Codified Laws 10-29-15 (1982), The South Dakota Airline Flight Property Tax establishes a method of taxing a particular type of property to the exclusion of any other tax on that property It therefore stands in lieu of the generally applicable ad valorem property tax that had been assessed on most other commercial and industrial property in the State at the time the airline flight property tax was established The language and logic of 1513(d)(3), therefore, lead to the conclusion that the South Dakota Airline Flight Property Tax falls under the in lieu tax exemption Appellants argue, however, that these characteristics alone are not sufficient for a tax to be exempted by *133 1513(d)(3) Appellants advocate the position taken by the Supreme Court of South Dakota, that in order to be exempted under this provision a tax must take the place of another tax that historically had been applied to the airline property The fact that a property tax is applied to the exclusion of all other property taxes is immaterial, appellants assert, unless some past tax was actually replaced by the present tax Because South Dakota's taxation of airline flight property has always taken the form of the taxation scheme at issue in this case, appellants argue, the South Dakota Airline Flight Property Tax is not a true "in lieu tax" Admittedly the phrase "in lieu tax" is open to this interpretation The illogical results of applying such an interpretation, however, argue strongly against the conclusion that Congress intended these results when it drafted 1513(d)(3) Under the interpretation appellants advocate, the question whether a tax would be exempted under the in lieu tax provision would, at best, turn on historical fortuity The identical taxation scheme South Dakota utilizes would be exempted under 1513(d)(3) if South Dakota had at one time applied some other taxation scheme to airline flight property Thus, if at one time the proceeds of the airline flight property tax had gone to general state expenditures rather than directly to the benefit of airports and airlines, the present tax would be exempted Because South Dakota has always chosen to devote its taxes on airline flight property solely to the benefit of those airlines, it is not exempted, according to appellants Why a State that has consistently chosen to levy, to the exclusion of all other property taxes, a tax utilized wholly for aeronautical purposes should be penalized for its consistency is unexplained At worst, appellants' interpretation of 1513(d)(3) would do no more than place a meaningless hurdle before state legislatures seeking to conform their tax scheme to the requirements of this provision A closer examination of how this proposed replacement requirement would operate in *134 practice illustrates the point Appellants do not suggest — and have no basis upon which to suggest — that in order to be an "in lieu tax" under 1513(d)(3) the airline flight property tax must have replaced some other tax by the effective date of the federal provision If one tax must replace another, therefore, the replacement could take place at any time Moreover, it could not be a condition of 1513(d)(3) coverage that the "in lieu tax" replace a tax that had met the antidiscrimination restrictions of 1513(d) If the tax described in 1513(d)(3) could replace only a tax that met all the requirements of 1513(d)(1), then 1513(d)(3) would not be an exemption at all; it would simply add a restriction on how the taxes could be spent with no corresponding latitude on how they may be collected Ultimately, therefore, South Dakota could satisfy appellants' interpretation of 1513(d)(3) by simply amending its tax code so that its airline flight property tax took some other form, then the following session substituting for that tax a tax utilized wholly for aeronautical purposes This exercise of replacing one tax with another, while contributing somewhat to a state legislature's workload, would contribute nothing to the policies of the Airport and Airway Improvement Act In sum, the language of 1513(d)(3), while at first glance ambiguous, should be interpreted in a manner that comports with the policies of the Airport and Airway Improvement Act That interpretation is that 1513(d)(3) exempts from the antidiscrimination provisions of 1513(d)(1) a tax on airline flight property, applied to the exclusion of any other possible tax on that property, the proceeds of which are wholly utilized for airport and aeronautical purposes Because the South Dakota Airline Flight Property Tax fits this description, it does not violate the antidiscrimination provisions of 1513(d) For this reason, the judgment of the Supreme Court of South Dakota is Affirmed

Justice Brennan

majority

Goosby v. Osser

https://www.courtlistener.com/opinion/108661/goosby-v-osser/

https://www.courtlistener.com/api/rest/v3/clusters/108661/

1972-040

The question is whether 28 U.S. C. § 2281[1] required the convening of a three-judge court in the District Court for the Eastern District of Pennsylvania to hear this case. It is a class action brought by and on behalf of persons awaiting trial and confined in Philadelphia County prisons because either unable to afford bail or because charged with nonbailable offenses. The complaint alleges that provisions of the Pennsylvania Election Code, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, absolutely deny petitioners' class the right to vote in *514 that they neither permit members of the class to leave prison to register and vote, nor provide facilities for the purpose at the prisons, and in that they expressly prohibit persons "confined in penal institutions" from voting by absentee ballot.[2] The complaint names as defendants two Commonwealth officials, the Attorney General and Secretary of State of Pennsylvania, and certain municipal officials of the Country and City of Philadelphia: the City Commissioners of Philadelphia who constitute the Board of Elections and Registration Commission of the City and Country of Philadelphia, the Voting Registration Supervisor for the City and Country, and the Superintendent of Prisons for the Country. On oral argument before a single judge on petitioners' motion for a temporary restraining order, the Commonwealth officials appeared by a Deputy Attorney General, who conceded that the challenged provisions of the Election Code, as applied to petitioners' class, were unconstitutional under the Fourteenth Amendment. The municipal officials, on the other hand, vigorously defended the constitutionality of the provisions as so applied. The single judge deemed the contrary view of the municipal officials to be irrelevant, as he regarded the Commonwealth officials to be the "principal defendants." See *515 n. 3, infra. He therefore ruled that the concession on behalf of the Commonwealth officials meant there was no case or controversy before the court as required by Art. III of the Constitution, and dismissed the complaint.[3] On petitioners' appeal, the Court of Appeals for the Third Circuit affirmed. 452 F.2d 39 (1971). We do not, however, read the per curiam opinion of the Court of Appeals as resting the affirmance on agreement with the single judge that the concession of the Commonwealth officials meant there was no case or controversy before the court. Rather, we read the per curiam opinion as either implying disagreement with the single judge on that question, or as at least assuming that a case or controversy existed, for the opinion states that, in the view of the Court of Appeals, petitioners' constitutional claims were wholly insubstantial under McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969), in which circumstance, *516 the Court of Appeals held, Bailey v. Patterson, 369 U.S. 31 (1962), was authority that 28 U.S. C. § 2281 did not require the assembly of a three-judge court and that dismissal by the single judge was therefore proper, 452 F.2d, at 40. A petition for rehearing en banc was denied, three judges dissenting. We granted certiorari, 408 U.S. 922 (1972). We reverse the judgment of the Court of Appeals and remand with direction to enter an appropriate order pursuant to 28 U.S. C. § 2281 for the convening of a three-judge court to hear this case. I The single judge clearly erred in holding that the concession of the Commonwealth officials foreclosed the existence of a case or controversy. All parties are in accord that Pennsylvania law did not oblige the municipal officials to defer to the concession of the Commonwealth officials, or otherwise give the Commonwealth officials a special status as "principal defendants."[4] Indeed, the brief filed in this Court by the Commonwealth officials forthrightly argues that "[t]he District Court made an egregious error. The Attorney General and the Secretary of the Commonwealth are not the only defendants in this case. The City Commissioners of Philadelphia, the Voting Registration Supervisor, the Registration Commission, and the Superintendent of Prisons for Philadelphia Country are also parties. These parties have contested vigorously the issues raised by petitioners both in the District Court and on appeal. *517 They have provided adversity of interest, and will sharply define the issues, to the extent they are not already clear." Brief for Respondents Commonwealth of Pennsylvania et al. 4-5.[5] Thus, there is satisfied the requisite of Art. III that "[t]he constitutional question . . . be presented in the context of a specific live grievance." Golden v. Zwickler, 394 U.S. 103, 110 (1969). As between petitioners and the municipal officials, the District Court was "called upon to adjudge the legal rights of litigants in actual controversies," Liverpool, N. Y. & P. S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885), and "the interests of [petitioners' class] require the use of . . . judicial authority for [petitioners'] protection against actual interference." United Public Workers of America v. Mitchell, 330 U.S. 75, 90 (1947). Since the municipal officials persist in their asserted right to enforce the challenged provisions of the Election Code, there is a "real and substantial controversy" "touching the legal relations of parties having adverse legal interests," Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937), in which circumstance the concession of the Commonwealth officials could not have the effect of dissipating the existence of a case or controversy. Cf. In re Metropolitan Railway Receivership, 208 U.S. 90, 107-108 (1908). *518 II The Court of Appeals also erred. We disagree with its holding that McDonald v. Board of Election Comm'rs, supra, rendered petitioners' constitutional claims wholly insubstantial. Title 28 U.S. C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. "Constitutional insubstantiality" for this purpose has been equated with such concepts as "essentially fictitious," Bailey v. Patterson, 369 U. S., at 33; "wholly insubstantial," ibid.; "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910); and "obviously without merit," Ex parte Poresky, 290 U.S. 30, 32 (1933). The limiting words "wholly" and "obviously" have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S. C. § 2281. A claim is insubstantial only if " `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.' " Ex parte Poresky, supra, at 32, quoting from Hannis Distilling Co. v. Baltimore, supra, at 288; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 (1933); McGilvra v. Ross, 215 U.S. 70, 80 (1909). Under this test, it is clear that McDonald is not a prior decision of this Court that "foreclose[s] the subject" of petitioners' constitutional attack upon the Pennsylvania statutory scheme; it is demonstrably not a decision that *519 "leave[s] no room for the inference that the question sought to be raised [by petitioners] can be the subject of controversy." In McDonald, appellants were a class of pretrial detainees in Cook Country, Illinois, already registered to vote, who sought to vote only by absentee ballot. Their timely applications to the Cook Country Board of Election Commissioners for absentee ballots were denied on the ground that pretrial detainees were not included among those persons specifically permitted by the Illinois Election Code to vote by absentee ballot. Appellants brought suit alleging that in that circumstance the Illinois Election Code denied them equal protection of the laws, particularly as the Code provided absentee ballots for those "medically incapacitated," and for pretrial detainees who were residents of Cook Country but incarcerated outside of Cook Country.[6] The threshold question presented in McDonald was "how stringent a standard to use in evaluating the classifications made [by the Illinois absentee ballot provisions] and whether the distinctions must be justified by a compelling state interest . . . ." 394 U.S., at 806. In resolving this question, the Court analyzed the Illinois scheme in light of our decisions that required the application of the more stringent compelling state interest test when either a fundamental right, such as the right to vote, was allegedly infringed, Reynolds v. Sims, 377 U.S. 533 (1964); Harper v. Virginia Board of Elections, *520 383 U.S. 663 (1966); Carrington v. Rash, 380 U.S. 89 (1965), or when the statutory classifications were drawn on the basis of suspect criteria, such as wealth or race, Harper v. Virginia Board of Elections, supra; McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Douglas v. California, 372 U.S. 353 (1963). 394 U.S., at 807. Our analysis led us to conclude that neither situation was presented by the Illinois absentee voting provisions. We held that "the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race," ibid., and, with respect to the alleged infringement of appellants' right to vote, that: "[T]here is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants' claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; not, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. [Citation omitted.] Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting." Id., at 807-808. (Emphasis supplied.) For all that appeared, Illinois might make the franchise available by other means: "Appellants agree that the record is barren of any indication that the State might not, for instance, *521 possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own." Id., at 808 n. 6. Thus, "[s]ince there is nothing in the record to show that appellants are in fact absolutely prohibited from voting by the State . . ." id., at 808 n. 7, we concluded that the Illinois absentee ballot provisions were to be tested by the "more traditional standards for evaluating. . . equal protection claims," id., at 808, and that under those standards the provisions could not be said to be arbitrary or unreasonable, particularly since "there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise." Id., at 809. Petitioners' constitutional challenges to the Pennsylvania scheme are in sharp contrast. Petitioners allege[7] that, unlike the appellants in McDonald, the Pennsylvania statutory scheme absolutely prohibits them from voting, both because a specific provision affirmatively excludes "persons confined in a penal institution" from voting by absentee ballot, Pa. Stat. Ann., Tit. 25, § 2602 (w) *522 (12) (Supp. 1972-1973), and because requests by members of petitioners' class to register and to vote either by absentee ballot, or by personal or proxy appearance at polling places outside the prison, or at polling booths and registration facilities set up at the prisons, or generally by any means satisfactory to the election officials, had been denied. Thus, petitioners' complaint alleges a situation that McDonald itself suggested might make a different case. This is not to say, of course, that petitioners are as a matter of law entitled to the relief sought. We neither decide nor intimate any view upon the merits.[8] It suffices that we hold that McDonald does not "foreclose the subject" of petitioners' challenge to the Pennsylvania statutory scheme. The significant differences between that scheme and the Illinois scheme leave ample "room for the inference that the questions sought to be raised [by petitioners] can be the subject of controversy." See supra, at 518, 519. We therefore conclude that this case must be "heard and determined by a district court of three judges . . . ." 28 U.S. C. § 2281. The judgment of the Court of Appeals is therefore reversed and the case is remanded with direction to enter an appropriate order pursuant to that section for the convening of a three-judge court to hear and determine the merits of petitioners' constitutional claims, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153 (1963); Idlewild Bon Voyage Liquor Corp. v. *523 Epstein, 370 U.S. 713 (1962); Borden Co. v. Liddy, 309 F.2d 871, 876 (CA8 1962), cert. denied, 372 U.S. 953 (1963); Riss & Co. v. Hoch, 99 F.2d 553, 555 (CA10 1938); see also C. Wright, The Law of Federal Courts 190-191 (2d ed. 1970), or, if deemed appropriate, to abstain from such determination pending state court proceedings. See Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509-513 (1972). It is so ordered.

The question is whether 28 US C 2281[1] required the convening of a three-judge court in the District Court for the Eastern District of Pennsylvania to hear this case It is a class action brought by and on behalf of peons awaiting trial and confined in Philadelphia County prisons because either unable to afford bail or because charged with nonbailable offenses The complaint alleges that provisions of the Pennsylvania Election Code, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, absolutely deny petitione' class the right to vote in *514 that they neither permit membe of the class to leave prison to register and vote, nor provide facilities for the purpose at the prisons, and in that they expressly prohibit peons "confined in penal institutions" from voting by absentee ballot[2] The complaint names as defendants two Commonwealth officials, the Attorney General and Secretary of State of Pennsylvania, and certain municipal officials of the Country and City of Philadelphia: the City Commissione of Philadelphia who constitute the Board of and Registration Commission of the City and Country of Philadelphia, the Voting Registration Supervisor for the City and Country, and the Superintendent of Prisons for the Country On oral argument before a single judge on petitione' motion for a temporary restraining order, the Commonwealth officials appeared by a Deputy Attorney General, who conceded that the challenged provisions of the Election Code, as applied to petitione' class, were unconstitutional under the Fourteenth Amendment The municipal officials, on the other hand, vigorously defended the constitutionality of the provisions as so applied The single judge deemed the contrary view of the municipal officials to be irrelevant, as he regarded the Commonwealth officials to be the "principal defendants" See *515 n 3, infra He therefore ruled that the concession on behalf of the Commonwealth officials meant there was no case or controvey before the court as required by Art III of the Constitution, and dismissed the complaint[3] On petitione' appeal, the Court of Appeals for the Third Circuit affirmed We do not, however, read the per curiam opinion of the Court of Appeals as resting the affirmance on agreement with the single judge that the concession of the Commonwealth officials meant there was no case or controvey before the court Rather, we read the per curiam opinion as either implying disagreement with the single judge on that question, or as at least assuming that a case or controvey existed, for the opinion states that, in the view of the Court of Appeals, petitione' constitutional claims were wholly insubstantial under in which circumstance, *516 the Court of Appeals held, was authority that 28 US C 2281 did not require the assembly of a three-judge court and that dismissal by the single judge was therefore A petition for rehearing en banc was denied, three judges dissenting We granted certiorari, We revee the judgment of the Court of Appeals and remand with direction to enter an appropriate order puuant to 28 US C 2281 for the convening of a three-judge court to hear this case I The single judge clearly erred in holding that the concession of the Commonwealth officials foreclosed the existence of a case or controvey All parties are in accord that Pennsylvania law did not oblige the municipal officials to defer to the concession of the Commonwealth officials, or otherwise give the Commonwealth officials a special status as "principal defendants"[4] Indeed, the brief filed in this Court by the Commonwealth officials forthrightly argues that "[t]he District Court made an egregious error The Attorney General and the Secretary of the Commonwealth are not the only defendants in this case The City Commissione of Philadelphia, the Voting Registration Supervisor, the Registration Commission, and the Superintendent of Prisons for Philadelphia Country are also parties These parties have contested vigorously the issues raised by petitione both in the District Court and on appeal *517 They have provided adveity of interest, and will sharply define the issues, to the extent they are not already clear" Brief for Respondents Commonwealth of Pennsylvania et al 4-5[5] Thus, there is satisfied the requisite of Art III that "[t]he constitutional question be presented in the context of a specific live grievance" As between petitione and the municipal officials, the District Court was "called upon to adjudge the legal rights of litigants in actual controveies," Liverpool, N Y & P S S and "the interests of [petitione' class] require the use of judicial authority for [petitione'] protection against actual interference" United Public Worke of Since the municipal officials peist in their asserted right to enforce the challenged provisions of the Election Code, there is a "real and substantial controvey" "touching the legal relations of parties having advee legal interests," Aetna Life Ins in which circumstance the concession of the Commonwealth officials could not have the effect of dissipating the existence of a case or controvey Cf In re Metropolitan Railway Receivehip, 208 US (18) *518 II The Court of Appeals also erred We disagree with its holding that rendered petitione' constitutional claims wholly insubstantial Title 28 US C 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial "Constitutional insubstantiality" for this purpose has been equated with such concepts as "essentially fictitious," ; "wholly insubstantial," ibid; "obviously frivolous," Hannis Distilling ; and "obviously without merit," Ex parte 2 US 30, The limiting words "wholly" and "obviously" have cogent legal significance In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 US C 2281 A claim is insubstantial only if " `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controvey' " Ex parte at quoting from Hannis Distilling at ; see also Levering & Garrigues ; (19) Under this test, it is clear that McDonald is not a prior decision of this Court that "foreclose[s] the subject" of petitione' constitutional attack upon the Pennsylvania statutory scheme; it is demonstrably not a decision that *519 "leave[s] no room for the inference that the question sought to be raised [by petitione] can be the subject of controvey" In McDonald, appellants were a class of pretrial detainees in Cook Country, Illinois, already registered to vote, who sought to vote only by absentee ballot Their timely applications to the Cook Country Board of Election Commissione for absentee ballots were denied on the ground that pretrial detainees were not included among those peons specifically permitted by the Illinois Election Code to vote by absentee ballot Appellants brought suit alleging that in that circumstance the Illinois Election Code denied them equal protection of the laws, particularly as the Code provided absentee ballots for those "medically incapacitated," and for pretrial detainees who were residents of Cook Country but incarcerated outside of Cook Country[6] The threshold question presented in McDonald was "how stringent a standard to use in evaluating the classifications made [by the Illinois absentee ballot provisions] and whether the distinctions must be justified by a compelling state interest " 4 US, at 6 In resolving this question, the Court analyzed the Illinois scheme in light of our decisions that required the application of the more stringent compelling state interest test when either a fundamental right, such as the right to vote, was allegedly infringed, ; ; 3 US 89 or when the statutory classifications were drawn on the basis of suspect criteria, such as wealth or race, Harper v Virginia Board of ; 4 US, at 7 Our analysis led us to conclude that neither situation was presented by the Illinois absentee voting provisions We held that "the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race," ibid, and, with respect to the alleged infringement of appellants' right to vote, that: "[T]here is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots Despite appellants' claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; not, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants [Citation omitted] Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting" Id, at 7-8 (Emphasis supplied) For all that appeared, Illinois might make the franchise available by other means: "Appellants agree that the record is barren of any indication that the State might not, for instance, *521 possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own" Id, at 8 n 6 Thus, "[s]ince there is nothing in the record to show that appellants are in fact absolutely prohibited from voting by the State " id, at 8 n 7, we concluded that the Illinois absentee ballot provisions were to be tested by the "more traditional standards for evaluating equal protection claims," id, at 8, and that under those standards the provisions could not be said to be arbitrary or unreasonable, particularly since "there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise" Id, at 9 Petitione' constitutional challenges to the Pennsylvania scheme are in sharp contrast Petitione allege[7] that, unlike the appellants in McDonald, the Pennsylvania statutory scheme absolutely prohibits them from voting, both because a specific provision affirmatively excludes "peons confined in a penal institution" from voting by absentee ballot, Pa Stat Ann, Tit 25, 2602 (w) *522 (12) (Supp 1972-1973), and because requests by membe of petitione' class to register and to vote either by absentee ballot, or by peonal or proxy appearance at polling places outside the prison, or at polling booths and registration facilities set up at the prisons, or generally by any means satisfactory to the election officials, had been denied Thus, petitione' complaint alleges a situation that McDonald itself suggested might make a different case This is not to say, of coue, that petitione are as a matter of law entitled to the relief sought We neither decide nor intimate any view upon the merits[8] It suffices that we hold that McDonald does not "foreclose the subject" of petitione' challenge to the Pennsylvania statutory scheme The significant differences between that scheme and the Illinois scheme leave ample "room for the inference that the questions sought to be raised [by petitione] can be the subject of controvey" See We therefore conclude that this case must be "heard and determined by a district court of three judges " 28 US C 2281 The judgment of the Court of Appeals is therefore reveed and the case is remanded with direction to enter an appropriate order puuant to that section for the convening of a three-judge court to hear and determine the merits of petitione' constitutional claims, see Kennedy v Mendoza-Martinez, 372 US 144, ; Idlewild Bon Voyage Liquor Corp v *523 Epstein, 370 US 713 ; Borden Co v Liddy, 309 F2d 871, cert denied, 372 US 953 ; Riss & Co v Hoch, 99 F2d 553, ; see also C Wright, The Law of Federal Courts 1-191 (2d ed 1970), or, if deemed appropriate, to abstain from such determination pending state court proceedings See Lake Carrie' Assn v MacMullan, 406 US 498, It is so ordered

Justice Alito

dissenting

Wyeth v. Levine

https://www.courtlistener.com/opinion/145902/wyeth-v-levine/

https://www.courtlistener.com/api/rest/v3/clusters/145902/

2008-029

This case illustrates that tragic facts make bad law. The Court holds that a state tort jury, rather than the Food and Drug Administration (FDA), is ultimately responsible for regulating warning labels for prescription drugs. That result cannot be reconciled with Geier v. American Honda Motor Co., 529 U.S. 861, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000), or general principles of conflict pre-emption. I respectfully dissent. I The Court frames the question presented as a "narro[w]" one—namely, whether Wyeth has a duty to provide "an adequate warning about using the IV-push method" to administer Phenergan. Ante, at 1194. But that ignores the antecedent question of who—the FDA or a jury in Vermont— has the authority and responsibility for determining the "adequacy" of Phenergan's warnings. Moreover, it is unclear how a "stronger" warning could have helped respondent, see ante, at 1199; after *1218 all, the physician's assistant who treated her disregarded at least six separate warnings that are already on Phenergan's labeling, so respondent would be hard pressed to prove that a seventh would have made a difference.[1] More to the point, the question presented by this case is not a "narrow" one, and it does not concern whether Phenergan's label should bear a "stronger" warning. Rather, the real issue is whether a state tort jury can countermand the FDA's considered judgment that Phenergan's FDA-mandated warning label renders its intravenous (IV) use "safe." Indeed, respondent's amended complaint alleged that Phenergan is "not reasonably safe for intravenous administration," App. 15, ¶ 6; respondent's attorney told the jury that Phenergan's label should say, "`Do not use this drug intravenously,'" id., at 32; respondent's expert told the jury, "I think the drug should be labeled `Not for IV use,'" id., at 59; and during his closing argument, respondent's attorney told the jury, "Thank God we don't rely on the FDA to ... make the safe[ty] decision. You will make the decision.... The FDA doesn't make the decision, you do," id., at 211-212.[2] Federal law, however, does rely on the FDA to make safety determinations like the one it made here. The FDA has long known about the risks associated with IV push in general and its use to administer Phenergan in particular. Whether wisely or not, the FDA has concluded—over the course of extensive, 54-year-long regulatory proceedings—that the drug is "safe" and "effective" when used in accordance with its FDA-mandated labeling. The unfortunate fact that respondent's healthcare providers ignored Phenergan's labeling may make this an ideal medical-malpractice case.[3] But turning a common-law tort suit into a "frontal assault" on the FDA's regulatory regime for drug labeling upsets the well-settled meaning of the Supremacy Clause and our conflict pre-emption jurisprudence. Brief for United States as Amicus Curiae 21. *1219 II A To the extent that "[t]he purpose of Congress is the ultimate touchstone in every pre-emption case," Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996) (internal quotation marks omitted), Congress made its "purpose" plain in authorizing the FDA—not state tort juries—to determine when and under what circumstances a drug is "safe." "[T]he process for approving new drugs is at least as rigorous as the premarket approval process for medical devices," Riegel v. Medtronic, Inc., 552 U.S. ___, ___, 128 S. Ct. 999, 1018, 169 L. Ed. 2d 892 (2008) (GINSBURG, J., dissenting), and we held that the latter pre-empted a state-law tort suit that conflicted with the FDA's determination that a medical device was "safe," id., at ___, 128 S.Ct., at 1018 (opinion of the Court). Under the Federal Food, Drug, and Cosmetic Act (FDCA), a drug manufacturer may not market a new drug before first submitting a new drug application (NDA) to the FDA and receiving the agency's approval. See 21 U.S.C. § 355(a). An NDA must contain, among other things, "the labeling proposed to be used for such drug," § 355(b)(1)(F), "full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use," § 355(b)(1)(A), and "a discussion of why the benefits exceed the risks [of the drug] under the conditions stated in the labeling," 21 CFR § 314.50(d)(5)(viii) (2008). The FDA will approve an NDA only if the agency finds, among other things, that the drug is "safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof," there is "substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof," and the proposed labeling is not "false or misleading in any particular." 21 U.S.C. § 355(d). After the FDA approves a drug, the manufacturer remains under an obligation to investigate and report any adverse events associated with the drug, see 21 CFR § 314.80, and must periodically submit any new information that may affect the FDA's previous conclusions about the safety, effectiveness, or labeling of the drug, 21 U.S.C. § 355(k). If the FDA finds that the drug is not "safe" when used in accordance with its labeling, the agency "shall" withdraw its approval of the drug. § 355(e). The FDA also "shall" deem a drug "misbranded" if "it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." § 352(j). Thus, a drug's warning label "serves as the standard under which the FDA determines whether a product is safe and effective." 50 Fed.Reg. 7470 (1985). Labeling is "[t]he centerpiece of risk management," as it "communicates to health care practitioners the agency's formal, authoritative conclusions regarding the conditions under which the product can be used safely and effectively." 71 Fed.Reg. 3934 (2006). The FDA has underscored the importance it places on drug labels by promulgating comprehensive regulations—spanning an entire part of the Code of Federal Regulations, see 21 CFR pt. 201, with seven subparts and 70 separate sections—that set forth drug manufacturers' labeling obligations. Under those regulations, the FDA must be satisfied that a drug's warning label contains, among other things, "a summary of the essential scientific information needed for the safe and effective use of the drug," § 201.56(1), including a *1220 description of "clinically significant adverse reactions," "other potential safety hazards," "limitations in use imposed by them, ... and steps that should be taken if they occur," § 201.57(c)(6)(i). Neither the FDCA nor its implementing regulations suggest that juries may second-guess the FDA's labeling decisions. B 1 Where the FDA determines, in accordance with its statutory mandate, that a drug is on balance "safe," our conflict pre-emption cases prohibit any State from countermanding that determination. See, e.g., Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 348, 121 S. Ct. 1012, 148 L. Ed. 2d 854 (2001) (after the FDA has struck "a somewhat delicate balance of statutory objectives" and determined that petitioner submitted a valid application to manufacture a medical device, a State may not use common law to negate it); International Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S. Ct. 805, 93 L. Ed. 2d 883 (1987) (after the EPA has struck "the balance of public and private interests so carefully addressed by" the federal permitting regime for water pollution, a State may not use nuisance law to "upse[t]" it); Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981) (after the Interstate Commerce Commission has struck a "balance" between competing interests in permitting the abandonment of a railroad line, a State may not use statutory or common law to negate it). Thus, as the Court itself recognizes, it is irrelevant in conflict pre-emption cases whether Congress "enacted an express pre-emption provision at some point during the FDCA's 70-year history." Ante, at 1200; see also Geier, 529 U.S., at 869, 120 S. Ct. 1913 (holding the absence of an express pre-emption clause "does not bar the ordinary working of conflict pre-emption principles"). Rather, the ordinary principles of conflict pre-emption turn solely on whether a State has upset the regulatory balance struck by the federal agency. Id., at 884-885, 120 S. Ct. 1913; see also Chicago & North Western Transp. Co., supra, at 317, 101 S. Ct. 1124 (describing conflict pre-emption as "a two-step process of first ascertaining the construction of the [federal and state laws] and then determining the constitutional question whether they are actually in conflict" (internal quotation marks omitted)). 2 A faithful application of this Court's conflict pre-emption cases compels the conclusion that the FDA's 40-year-long effort to regulate the safety and efficacy of Phenergan pre-empts respondent's tort suit. Indeed, that result follows directly from our conclusion in Geier. Geier arose under the National Traffic and Motor Safety Vehicle Act of 1966, which directs the Secretary of the Department of Transportation (DOT) to "establish by order ... motor vehicle safety standards," 15 U.S.C. § 1392(a) (1988 ed.), which are defined as "minimum standard[s] for motor vehicle performance, or motor vehicle equipment performance," § 1391(2). Acting pursuant to that statutory mandate, the Secretary of Transportation promulgated Federal Motor Vehicle Safety Standard 208, which required car manufacturers to include passive restraint systems (i.e., devices that work automatically to protect occupants from injury during a collision) in a certain percentage of their cars built in or after 1987. See 49 CFR § 571.208 (1999). Standard 208 did not require installation of any particular type of passive restraint; instead, it gave manufacturers the option to install automatic *1221 seatbelts, airbags, or any other suitable technology that they might develop, provided the restraint(s) met the performance requirements specified in the rule. Ibid. Alexis Geier drove her 1987 Honda Accord into a tree, and although she was wearing her seatbelt, she nonetheless suffered serious injuries. She then sued Honda under state tort law, alleging that her car was negligently and defectively designed because it lacked a driver's-side airbag. She argued that Congress had empowered the Secretary to set only "minimum standard[s]" for vehicle safety. 15 U.S.C. § 1391(2). She also emphasized that the National Traffic and Motor Safety Vehicle Act contains a saving clause, which provides that "[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law." § 1397(k). Notwithstanding the statute's saving clause, and notwithstanding the fact that Congress gave the Secretary authority to set only "minimum" safety standards, we held Geier's state tort suit pre-empted. In reaching that result, we relied heavily on the view of the Secretary of Transportation—expressed in an amicus brief—that Standard 208 "`embodies the Secretary's policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car.'" 529 U.S., at 881, 120 S. Ct. 1913 (quoting Brief for United States as Amicus Curiae, O.T.1999, No. 98-1811, p. 25). Because the Secretary determined that a menu of alternative technologies was "safe," the doctrine of conflict pre-emption barred Geier's efforts to deem some of those federally approved alternatives "unsafe" under state tort law. The same rationale applies here. Through Phenergan's label, the FDA offered medical professionals a menu of federally approved, "safe" and "effective" alternatives—including IV push—for administering the drug. Through a state tort suit, respondent attempted to deem IV push "unsafe" and "ineffective." To be sure, federal law does not prohibit Wyeth from contraindicating IV push, just as federal law did not prohibit Honda from installing airbags in all its cars. But just as we held that States may not compel the latter, so, too, are States precluded from compelling the former. See also Fidelity Fed. Sav. & Loan Assn. v. de la Cuesta, 458 U.S. 141, 155, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982) ("The conflict does not evaporate because the [agency's] regulation simply permits, but does not compel," the action forbidden by state law). If anything, a finding of pre-emption is even more appropriate here because the FDCA—unlike the National Traffic and Motor Safety Vehicle Act—contains no evidence that Congress intended the FDA to set only "minimum standards," and the FDCA does not contain a saving clause.[4] See also ante, at *1222 1200 (conceding Congress' "silence" on the issue). III In its attempt to evade Geier's applicability to this case, the Court commits both factual and legal errors. First, as a factual matter, it is demonstrably untrue that the FDA failed to consider (and strike a "balance" between) the specific costs and benefits associated with IV push. Second, as a legal matter, Geier does not stand for the legal propositions espoused by the dissenters (and specifically rejected by the majority) in that case. Third, drug labeling by jury verdict undermines both our broader pre-emption jurisprudence and the broader workability of the federal drug-labeling regime. A Phenergan's warning label has been subject to the FDA's strict regulatory oversight since the 1950's. For at least the last 34 years, the FDA has focused specifically on whether IV-push administration of Phenergan is "safe" and "effective" when performed in accordance with Phenergan's label. The agency's ultimate decision—to retain IV push as one means for administering Phenergan, albeit subject to stringent warnings—is reflected in the plain text of Phenergan's label (sometimes in boldfaced font and all-capital letters). And the record contains ample evidence that the FDA specifically considered and reconsidered the strength of Phenergan's IV-push-related warnings in light of new scientific and medical data. The majority's factual assertions to the contrary are mistaken. 1 The FDA's focus on IV push as a means of administering Phenergan dates back at least to 1975. In August of that year, several representatives from both the FDA and Wyeth met to discuss Phenergan's warning label. At that meeting, the FDA specifically proposed "that Phenergan Injection should not be used in Tubex & reg;." 2 Record 583, 586 (Plaintiff's Trial Exh. 17, Internal Correspondence from W.E. Langeland to File (Sept. 5, 1975) (hereinafter 1975 Memo)). "Tubex" is a syringe system used exclusively for IV push. See App. 43. An FDA official explained that the agency's concerns arose from medical-malpractice lawsuits involving IV push of the drug, see 1975 Memo 586, and that the FDA was aware of "5 cases involving amputation where the drug had been administered by Tubex together with several additional cases involving necrosis," id., at 586-587. Rather than contraindicating Phenergan for IV push, however, the agency and Wyeth agreed "that there was a need for better instruction regarding the problems of intraarterial injection." Id., at 587. The next year, the FDA convened an advisory committee to study, among other things, the risks associated with the Tubex system and IV push. App. 294. At the conclusion of its study, the committee recommended an additional IV-push-specific warning for Phenergan's label, see ibid., but did not recommend eliminating IV push from the drug label altogether. In response to the committee's recommendations, the FDA instructed Wyeth to make several changes to strengthen Phenergan's label, including the addition of upper case warnings related to IV push. See id., at 279-280, 282-283. *1223 In 1987, the FDA directed Wyeth to amend its label to include the following text: "`[1] When used intravenously, [Phenergan] should be given in a concentration no greater than 25 mg/ml and at a rate not to exceed 25 mg/minute. [2] Injection through a properly running intravenous infusion may enhance the possibility of detecting arterial placement.'" Id., at 311-312. The first of the two quoted sentences refers specifically to IV push; as respondent's medical expert testified at trial, the label's recommended rate of administration (not to exceed 25 mg per minute) refers to "IV push, as opposed to say being in a bag and dripped over a couple of hours." Id., at 52. The second of the two quoted sentences refers to IV drip. See id., at 15-16 (emphasizing that a "running IV" is the same thing as "IV drip"). In its 1987 labeling order, the FDA cited voluminous materials to "suppor[t]" its new and stronger warnings related to IV push and the preferability of IV drip.[5]Id., at 313. One of those articles specifically discussed the relative advantages and disadvantages of IV drip compared to IV push, as well as the costs and benefits of administering Phenergan via IV push.[6] The FDA also cited published case reports from the 1960's of gangrene caused by the intra-arterial injection of Phenergan,[7] and the FDA instructed Wyeth to amend Phenergan's label in accordance with the latest medical research.[8] The FDA also studied drugs similar to Phenergan and cited numerous cautionary articles—one of which urged the agency to consider contraindicating *1224 such drugs for IV use altogether.[9] In "support" of its labeling order, the FDA also cited numerous articles that singled out the inner crook of the elbow—known as the "antecubital fossa" in the medical community—which is both a commonly used injection site, see id., at 70 (noting that respondent's injection was pushed into "the antecubital space"), and a universally recognized high-risk area for inadvertent intra-arterial injections. One of the articles explained: "Because of the numerous superficial positions the ulnar artery might occupy, it has often been entered during attempted venipuncture [of the antecubital fossa].... However, the brachial and the radial arteries might also be quite superficial in the elbow region.... The arterial variations of the arm, especially in and about the cubital fossa, are common and numerous. If venipuncture must be performed in this area, a higher index of suspicion must be maintained to forestall misdirected injections." Stone & Donnelly, The Accidental Intra-arterial Injection of Thiopental, 22 Anesthesiology 995, 996 (1961) (footnote omitted; cited in App. 315, no. 20).[10] *1225 Based on this and other research, the FDA ordered Wyeth to include a specific warning related to the use of the antecubital space for IV push.[11] 2 When respondent was injured in 2000, Phenergan's label specifically addressed IV push in several passages (sometimes in lieu of and sometimes in addition to those discussed above). For example, the label warned of the risks of intra-arterial injection associated with "aspiration," which is a technique used only in conjunction with IV push.[12] The label also cautioned against the use of "syringes with rigid plungers," App. 390, which are used only to administer the drug via IV push. As respondent's medical expert testified at trial, "by talking plungers and rigid needles, that's the way you do it, to push it with the plunger." Id., at 53 (testimony of Dr. John Matthew). Moreover, Phenergan's 2000 label devoted almost a full page to discussing the "Tubex system," see id., at 391, which, as noted above, is used only to administer the drug via IV push. While Phenergan's label very clearly authorized the use of IV push, it also made clear that IV push is the delivery method of last resort. The label specified that "[t]he preferred parenteral route of administration is by deep intramuscular injection." Id., at 390. If an intramuscular injection is ineffective, then "it is usually preferable to inject [Phenergan] through the tubing of an intravenous infusion set that is known to be functioning satisfactorily." Ibid. See also id., at 50-51 (testimony of respondent's medical expert, Dr. John Matthew) (conceding that the best way to determine that an IV set is functioning satisfactorily is to use IV drip). Finally, if for whatever reason a medical professional chooses to use IV push, he or she is on notice that "INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY." Id., at 391; see also id., at 390 ("Under no circumstances should Phenergan Injection be given by intra-arterial injection due to the likelihood of severe arteriospasm and the possibility of resultant gangrene"). Phenergan's label also directs medical practitioners to choose veins wisely when using IV push: "Due to the close proximity of arteries and veins in the areas most commonly used for intravenous injection, extreme care should be exercised to avoid perivascular extravasation or inadvertent intra-arterial injection. Reports compatible with inadvertent intra-arterial injection of Phenergan Injection, usually in conjunction with other drugs intended for intravenous use, suggest that pain, severe chemical irritation, severe spasm of distal vessels, and resultant gangrene requiring amputation are likely under such circumstances." Ibid. Thus, it is demonstrably untrue that, as of 2000, Phenergan's "labeling did not contain a specific warning about the risks of *1226 IV-push administration." Ante, at 1192. And whatever else might be said about the extensive medical authorities and case reports that the FDA cited in "support" of its approval of IV-push administration of Phenergan, it cannot be said that the FDA "paid no more than passing attention to" IV push, ante, at 1193; nor can it be said that the FDA failed to weigh its costs and benefits, Brief for Respondent 50. 3 For her part, respondent does not dispute the FDA's conclusion that IV push has certain benefits. At trial, her medical practitioners testified that they used IV push in order to help her "in a swift and timely way" when she showed up at the hospital for the second time in one day complaining of "intractable" migraines, "terrible pain," inability to "bear light or sound," sleeplessness, hours-long spasms of "retching" and "vomiting," and when "every possible" alternative treatment had "failed." App. 40 (testimony of Dr. John Matthew); id., at 103, 106, 109 (testimony of physician's assistant Jessica Fisch). Rather than disputing the benefits of IV push, respondent complains that the FDA and Wyeth underestimated its costs (and hence did not provide sufficient warnings regarding its risks). But when the FDA mandated that Phenergan's label read, "INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY," id., at 391, and when the FDA required Wyeth to warn that "[u]nder no circumstances should Phenergan Injection be given by intra-arterial injection," id., at 390, the agency could reasonably assume that medical professionals would take care not to inject Phenergan intra-arterially. See also 71 Fed.Reg. 3934 (noting that a drug's warning label "communicates to health care practitioners the agency's formal, authoritative conclusions regarding the conditions under which the product can be used safely and effectively"). Unfortunately, the physician's assistant who treated respondent in this case disregarded Phenergan's label and pushed the drug into the single spot on her arm that is most likely to cause an inadvertent intra-arterial injection. As noted above, when the FDA approved Phenergan's label, it was textbook medical knowledge that the "antecubital fossa" creates a high risk of inadvertent intra-arterial injection, given the close proximity of veins and arteries. See supra, at 1224-1225; see also The Lippincott Manual of Nursing Practice 99 (7th ed.2001) (noting, in a red-text "NURSING ALERT," that the antecubital fossa is "not recommended" for administering dangerous drugs, "due to the potential for extravasation").[13] According to the physician's assistant who injured respondent, however, "[i]t never crossed my mind" that an antecubital injection of Phenergan could hit an artery. App. 110; see also ibid. ("[It] just wasn't something that I was aware of at the time"). Oblivious to the risks emphasized in Phenergan's warnings, the physician's assistant pushed a double dose of the drug into an antecubital artery over the course of "[p]robably about three to four minutes," id., at 111; id., at 105, notwithstanding respondent's complaints of a "`burn[ing]'" sensation that she subsequently described as "`one of the most extreme pains that I've ever felt,'" id., at *1227 110, 180-181. And when asked why she ignored Phenergan's label and failed to stop pushing the drug after respondent complained of burning pains, the physician's assistant explained that it would have been "just crazy" to "worr[y] about an [intra-arterial] injection" under the circumstances, id., at 111. The FDA, however, did not think that the risks associated with IV push—especially in the antecubital space—were "just crazy." That is why Phenergan's label so clearly warns against them. B Given the "balance" that the FDA struck between the costs and benefits of administering Phenergan via IV push, Geier compels the pre-emption of tort suits (like this one) that would upset that balance. The contrary conclusion requires turning yesterday's dissent into today's majority opinion. First, the Court denies the existence of a federal-state conflict in this case because Vermont merely countermanded the FDA's determination that IV push is "safe" when performed in accordance with Phenergan's warning label; the Court concludes that there is no conflict because Vermont did not "mandate a particular" label as a "replacement" for the one that the jury nullified, and because the State stopped short of altogether "contraindicating IV-push administration." Ante, at 1194. But as we emphasized in Geier (over the dissent's assertions to the contrary), the degree of a State's intrusion upon federal law is irrelevant—the Supremacy Clause applies with equal force to a state tort law that merely countermands a federal safety determination and to a state law that altogether prohibits car manufacturers from selling cars without airbags. Compare 529 U.S., at 881-882, 120 S. Ct. 1913, with id., at 902, 120 S. Ct. 1913 (STEVENS, J., dissenting). Indeed, as recently as last Term, we held that the Supremacy Clause pre-empts a "[s]tate tort law that requires a manufacturer's catheters to be safer, but hence less effective, than the model the FDA has approved...." Riegel, 552 U.S., at ___, 128 S.Ct., at 1008. It did not matter there that the State stopped short of altogether prohibiting the use of FDA-approved catheters—just as it does not matter here that Vermont stopped short of altogether prohibiting an FDA-approved method for administering Phenergan. See also Lohr, 518 U.S., at 504, 116 S. Ct. 2240 (BREYER, J., concurring in part and concurring in judgment) (noting it would be an "anomalous result" if pre-emption applied differently to a state tort suit premised on the inadequacy of the FDA's safety regulations and a state law that specifically prohibited an FDA-approved design). Second, the Court today distinguishes Geier because the FDA articulated its pre-emptive intent "without offering States or other interested parties notice or opportunity for comment." Ante, at 1201; see also ante, at 1203. But the Geier Court specifically rejected the argument (again made by the dissenters in that case) that conflict pre-emption is appropriate only where the agency expresses its pre-emptive intent through notice-and-comment rulemaking. Compare 529 U.S., at 885, 120 S. Ct. 1913 ("To insist on a specific expression of agency intent to pre-empt, made after notice-and-comment rulemaking, would be in certain cases to tolerate conflicts that an agency, and therefore Congress, is most unlikely to have intended. The dissent, as we have said, apparently welcomes that result .... We do not"), with id., at 908-910, 120 S. Ct. 1913 (STEVENS, J., dissenting) (emphasizing that "we generally expect an administrative regulation to declare any intention to *1228 pre-empt state law with some specificity," and that "[t]his expectation ... serves to ensure that States will be able to have a dialog with agencies regarding pre-emption decisions ex ante through the normal notice-and-comment procedures of the Administrative Procedure Act" (internal quotation marks omitted)). Indeed, pre-emption is arguably more appropriate here than in Geier because the FDA (unlike the DOT) declared its pre-emptive intent in the Federal Register. See 71 Fed.Reg. 3933-3936. Yet the majority dismisses the FDA's published preamble as "inherently suspect," ante, at 1201, and an afterthought that is entitled to "no weight," ante, at 1204. Compare Lohr, supra, at 506, 116 S. Ct. 2240 (opinion of BREYER, J.) (emphasizing that the FDA has a "special understanding of the likely impact of both state and federal requirements, as well as an understanding of whether (or the extent to which) state requirements may interfere with federal objectives," and that "[t]he FDA can translate these understandings into particularized pre-emptive intentions ... through statements in `regulations, preambles, interpretive statements, and responses to comments'"). Third, the Court distinguishes Geier because the DOT's regulation "bear[s] the force of law," whereas the FDA's preamble does not. Ante, at 1203; see also ante, at 1200. But it is irrelevant that the FDA's preamble does not "bear the force of law" because the FDA's labeling decisions surely do. See 21 U.S.C. § 355. It is well within the FDA's discretion to make its labeling decisions through administrative adjudications rather than through less-formal and less-flexible rulemaking proceedings, see SEC v. Chenery Corp., 332 U.S. 194, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947), and we have never previously held that our pre-emption analysis turns on the agency's choice of the latter over the former. Moreover, it cannot be said that Geier's outcome hinged on the agency's choice to promulgate a rule. See ante, at 1200, 1203. The Geier Court relied—again over the dissenters' protestations—on materials other than the Secretary's regulation to explain the conflict between state and federal law. Compare 529 U.S., at 881, 120 S. Ct. 1913, with id., at 899-900, 120 S. Ct. 1913 (STEVENS, J., dissenting), and ante, at 1204 (BREYER, J., concurring). Fourth, the Court sandwiches its discussion of Geier between the "presumption against pre-emption," ante, at 1200, and heavy emphasis on "the longstanding coexistence of state and federal law and the FDA's traditional recognition of state-law remedies," ante, at 1203. But the Geier Court specifically rejected the argument (again made by the dissenters in that case) that the "presumption against pre-emption" is relevant to the conflict pre-emption analysis. See 529 U.S., at 906-907, 120 S. Ct. 1913 (STEVENS, J., dissenting) ("[T]he Court simply ignores the presumption [against pre-emption]"). Rather than invoking such a "presumption," the Court emphasized that it was applying "ordinary," "longstanding," and "experience-proved principles of conflict pre-emption." Id., at 874, 120 S. Ct. 1913. Under these principles, the sole question is whether there is an "actual conflict" between state and federal law; if so, then pre-emption follows automatically by operation of the Supremacy Clause. Id., at 871-872, 120 S. Ct. 1913. See also Buckman, 531 U.S., at 347-348, 121 S. Ct. 1012 ("[P]etitioner's dealings with the FDA were prompted by [federal law], and the very subject matter of petitioner's statements [to the FDA] were dictated by [federal law]. Accordingly—and in contrast to situations implicating `federalism concerns and the historic primacy of state regulation of matters of health and safety'—no presumption *1229 against pre-emption obtains in this case" (citation omitted)).[14] Finally, the Geier Court went out of its way to emphasize (yet again over the dissenters' objections) that it placed "some weight" on the DOT's amicus brief, which explained the agency's regulatory objectives and the effects of state tort suits on the federal regulatory regime. 529 U.S., at 883, 120 S. Ct. 1913; compare id., at 910-911, 120 S. Ct. 1913 (STEVENS, J., dissenting) (criticizing the majority for "uph[olding] a regulatory claim of frustration-of-purposes implied conflict pre-emption based on nothing more than an ex post administrative litigating position and inferences from regulatory history and final commentary"). See also Lohr, 518 U.S., at 496, 116 S. Ct. 2240 (recognizing that the FDA is "uniquely qualified" to explain whether state law conflicts with the FDA's objectives). Yet today, the FDA's explanation of the conflict between state tort suits and the federal labeling regime, set forth in the agency's amicus brief, is not even mentioned in the Court's opinion. Instead of relying on the FDA's explanation of its own regulatory purposes, the Court relies on a decade-old and now-repudiated statement, which the majority finds preferable. See ante, at 1201-1202, 1203, n. 13. Cf. Riegel, 552 U.S., at ___, 128 S.Ct., at 1010 (noting that "the agency's earlier position (which the dissent describes at some length and finds preferable) is ... compromised, indeed deprived of all claim to deference, by the fact that it is no longer the agency's position" (citation omitted)); Altria Group, Inc. v. Good, 555 U.S. ___, ___, 129 S. Ct. 538, 549-550, ___ L.Ed.2d ___ (2008) (rejecting petitioners' reliance on the pre-emptive effect of the agency's "longstanding policy" because it is inconsistent with the agency's current one). And Justice BREYER suggests that state tort suits may "help the [FDA]," ante, at 1204 (concurring opinion), notwithstanding the FDA's insistence that state tort suits will "disrupt the agency's balancing of health risks and benefits," Brief for United States as Amicus Curiae 9. Geier does not countenance the use of state tort suits to second-guess the FDA's labeling decisions. And the Court's contrary conclusion has potentially far-reaching consequences. C By their very nature, juries are ill-equipped to perform the FDA's cost-benefit-balancing function. As we explained in Riegel, juries tend to focus on the risk of a *1230 particular product's design or warning label that arguably contributed to a particular plaintiff's injury, not on the overall benefits of that design or label; "the patients who reaped those benefits are not represented in court." 552 U.S., at ___, 128 S.Ct., at 1008. Indeed, patients like respondent are the only ones whom tort juries ever see, and for a patient like respondent—who has already suffered a tragic accident—Phenergan's risks are no longer a matter of probabilities and potentialities. In contrast, the FDA has the benefit of the long view. Its drug-approval determinations consider the interests of all potential users of a drug, including "those who would suffer without new medical [products]" if juries in all 50 States were free to contradict the FDA's expert determinations. Id., at ___, 128 S.Ct., at 1009. And the FDA conveys its warnings with one voice, rather than whipsawing the medical community with 50 (or more) potentially conflicting ones. After today's ruling, however, parochialism may prevail. The problem is well illustrated by the labels borne by "vesicant" drugs, many of which are used for chemotherapy. As a class, vesicants are much more dangerous than drugs like Phenergan,[15] but the vast majority of vesicant labels—like Phenergan's—either allow or do not disallow IV push. See Appendix, infra. Because vesicant extravasation can have devastating consequences, and because the potentially lifesaving benefits of these drugs offer hollow solace to the victim of such a tragedy, a jury's cost-benefit analysis in a particular case may well differ from the FDA's. For example, consider Mustargen (mechlorethamine HCl)—the injectable form of mustard gas—which can be used as an anticancer drug. Mustargen's FDA-approved label warns in several places that "This drug is HIGHLY TOXIC."[16] Indeed, the drug is so highly toxic: "Should accidental eye contact occur, copious irrigation for at least 15 minutes with water, normal saline or a balanced salt ophthalmic irrigating solution should be instituted immediately, followed by prompt ophthalmologic consultation. Should accidental skin contact occur, the affected part must be irrigated immediately with copious amounts of water, for at least 15 minutes while removing contaminated clothing and shoes, followed by 2% sodium thiosulfate solution. Medical attention should be sought immediately. Contaminated clothing should be destroyed."[17] Yet when it comes to administering this highly toxic drug, the label provides that "the drug may be injected directly into any suitable vein, [but] it is injected preferably into the rubber or plastic tubing of a flowing intravenous infusion set. This reduces the possibility of severe local reactions due to extravasation or high concentration of the drug." (Emphasis added.) Similarly, the FDA-approved labels for other powerful chemotherapeutic vesicants—including *1231 Dactinomycin, Oxaliplatin, Vinblastine, and Vincristine—specifically allow IV push, notwithstanding their devastating effects when extravasated. The fact that the labels for such drugs allow IV push is striking—both because vesicants are much more dangerous than Phenergan, and also because they are so frequently extravasated, see Boyle & Engelking, Vesicant Extravasation: Myths and Realities, 22 Oncology Nursing Forum 57, 58 (1995) (arguing that the rate of extravasation is "considerably higher" than 6.4% of all vesicant administrations). Regardless of the FDA's reasons for not contraindicating IV push for these drugs, it is odd (to say the least) that a jury in Vermont can now order for Phenergan what the FDA has chosen not to order for mustard gas.[18] * * * To be sure, state tort suits can peacefully coexist with the FDA's labeling regime, and they have done so for decades. Ante, at 1199-1200. But this case is far from peaceful coexistence. The FDA told Wyeth that Phenergan's label renders its use "safe." But the State of Vermont, through its tort law, said: "Not so." The state-law rule at issue here is squarely pre-empted. Therefore, I would reverse the judgment of the Supreme Court of Vermont. APPENDIX TO OPINION OF ALITO, J. ---------------------------------------------------------- Vesicant[1] IV Push[2] ---------------------------------------------------------- Dactinomycin Specifically allowed ---------------------------------------------------------- Mechlorethamine ---------------------------------------------------------- (Mustargen) Specifically allowed ---------------------------------------------------------- Oxaliplatin Specifically allowed ---------------------------------------------------------- Vinblastine Specifically allowed ---------------------------------------------------------- Vincristine Specifically allowed ---------------------------------------------------------- Bleomycin Neither mentioned nor prohibited ---------------------------------------------------------- Carboplatin Neither mentioned nor prohibited ---------------------------------------------------------- Dacarbazine Neither mentioned nor prohibited ---------------------------------------------------------- Mitomycin Neither mentioned nor prohibited ---------------------------------------------------------- Carmustine Not prohibited; IV drip recommended ---------------------------------------------------------- Cisplatin Not prohibited; IV drip recommended ---------------------------------------------------------- Epirubicin Not prohibited; IV drip recommended ---------------------------------------------------------- Etoposide Not prohibited; IV drip recommended ---------------------------------------------------------- Ifosfamide Not prohibited; IV drip recommended ---------------------------------------------------------- Mitoxantrone Not prohibited; IV drip recommended ---------------------------------------------------------- Paclitaxel Not prohibited; IV drip recommended ---------------------------------------------------------- Teniposide Not prohibited; IV drip recommended ---------------------------------------------------------- Vinorelbine Not prohibited; IV drip recommended ---------------------------------------------------------- Daunorubicin Prohibited ---------------------------------------------------------- Doxorubicin Prohibited ----------------------------------------------------------

This case illustrates that tragic facts make bad law. The Court holds that a state tort jury, rather than the Food and Drug Administration (FDA), is ultimately responsible for regulating warning labels for prescription drugs. That result cannot be reconciled with or general principles of conflict pre-emption. I respectfully dissent. I The Court frames the question presented as a "narro[w]" one—namely, whether Wyeth has a duty to provide "an adequate warning about using the IV-push method" to administer Phenergan. Ante, at 1194. But that ignores the antecedent question of who—the FDA or a jury in Vermont— has the authority and responsibility for determining the "adequacy" of Phenergan's warnings. Moreover, it is unclear how a "stronger" warning could have helped respondent, see ante, at 1199; after *1218 all, the physician's assistant who treated her disregarded at least six separate warnings that are already on Phenergan's labeling, so respondent would be hard pressed to prove that a seventh would have made a difference.[1] More to the point, the question presented by this case is not a "narrow" one, and it does not concern whether Phenergan's label should bear a "stronger" warning. Rather, the real issue is whether a state tort jury can countermand the FDA's considered judgment that Phenergan's FDA-mandated warning label renders its intravenous (IV) use "safe." Indeed, respondent's amended complaint alleged that Phenergan is "not reasonably safe for intravenous administration," App. 15, ¶ 6; respondent's attorney told the jury that Phenergan's label should say, "`Do not use this drug intravenously,'" ; respondent's expert told the jury, "I think the drug should be labeled `Not for IV use,'" ; and during his closing argument, respondent's attorney told the jury, "Thank God we don't rely on the FDA to make the safe[ty] decision. You will make the decision. The FDA doesn't make the decision, you do,"[2] Federal law, however, does rely on the FDA to make safety determinations like the one it made here. The FDA has long known about the risks associated with IV push in general and its use to administer Phenergan in particular. Whether wisely or not, the FDA has concluded—over the course of extensive, 54-year-long regulatory proceedings—that the drug is "safe" and "effective" when used in accordance with its FDA-mandated labeling. The unfortunate fact that respondent's healthcare providers ignored Phenergan's labeling may make this an ideal medical-malpractice case.[3] But turning a common-law tort suit into a "frontal assault" on the FDA's regulatory regime for drug labeling upsets the well-settled meaning of the Supremacy Clause and our conflict pre-emption jurisprudence. Brief for United States as Amicus Curiae 21. *1219 II A To the extent that "[t]he purpose of Congress is the ultimate touchstone in every pre-emption case," Medtronic, Congress made its "purpose" plain in authorizing the FDA—not state tort juries—to determine when and under what circumstances a drug is "safe." "[T]he process for approving new drugs is at least as rigorous as the premarket approval process for medical devices," and we held that the latter pre-empted a state-law tort suit that conflicted with the FDA's determination that a medical device was "safe," at 128 S.Ct., at Under the Federal Food, Drug, and Cosmetic Act (FDCA), a drug manufacturer may not market a new drug before first submitting a new drug application (NDA) to the FDA and receiving the agency's approval. See (a). An NDA must contain, among other things, "the labeling proposed to be used for such drug," 355(b)(1)(F), "full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use," 355(b)(1)(A), and "a discussion of why the benefits exceed the risks [of the drug] under the conditions stated in the labeling," 21 CFR 314.50(d)(5)(viii) The FDA will approve an NDA only if the agency finds, among other things, that the drug is "safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof," there is "substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof," and the proposed labeling is not "false or misleading in any particular." (d). After the FDA approves a drug, the manufacturer remains under an obligation to investigate and report any adverse events associated with the drug, see 21 CFR 314.80, and must periodically submit any new information that may affect the FDA's previous conclusions about the safety, effectiveness, or labeling of the drug, (k). If the FDA finds that the drug is not "safe" when used in accordance with its labeling, the agency "shall" withdraw its approval of the drug. 355(e). The FDA also "shall" deem a drug "misbranded" if "it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." 352(j). Thus, a drug's warning label "serves as the standard under which the FDA determines whether a product is safe and effective." 50 Fed.Reg. 7470 (1985). Labeling is "[t]he centerpiece of risk management," as it "communicates to health care practitioners the agency's formal, authoritative conclusions regarding the conditions under which the product can be used safely and effectively." 71 Fed.Reg. 3934 (2006). The FDA has underscored the importance it places on drug labels by promulgating comprehensive regulations—spanning an entire part of the Code of Federal Regulations, see 21 CFR pt. 201, with seven subparts and 70 separate sections—that set forth drug manufacturers' labeling obligations. Under those regulations, the FDA must be satisfied that a drug's warning label contains, among other things, "a summary of the essential scientific information needed for the safe and effective use of the drug," 201.56(1), including a *1220 description of "clinically significant adverse reactions," "other potential safety hazards," "limitations in use imposed by them, and steps that should be taken if they occur," 201.57(c)(6)(i). Neither the FDCA nor its implementing regulations suggest that juries may second-guess the FDA's labeling decisions. B 1 Where the FDA determines, in accordance with its statutory mandate, that a drug is on balance "safe," our conflict pre-emption cases prohibit any State from countermanding that determination. See, e.g., ; International Paper ; Chicago & North Western Transp. Thus, as the Court itself recognizes, it is irrelevant in conflict pre-emption cases whether Congress "enacted an express pre-emption provision at some point during the FDCA's 70-year history." Ante, at 1200; see also (holding the absence of an express pre-emption clause "does not bar the ordinary working of conflict pre-emption principles"). Rather, the ordinary principles of conflict pre-emption turn solely on whether a State has upset the regulatory balance struck by the federal agency. ; see also Chicago & North Western Transp. (describing conflict pre-emption as "a two-step process of first ascertaining the construction of the [federal and state laws] and then determining the constitutional question whether they are actually in conflict" ). 2 A faithful application of this Court's conflict pre-emption cases compels the conclusion that the FDA's 40-year-long effort to regulate the safety and efficacy of Phenergan pre-empts respondent's tort suit. Indeed, that result follows directly from our conclusion in arose under the National Traffic and Motor Safety Vehicle Act of 1966, which directs the Secretary of the Department of Transportation (DOT) to "establish by order motor vehicle safety standards," 15 U.S.C. 1392(a) (1988 ed.), which are defined as "minimum standard[s] for motor vehicle performance, or motor vehicle equipment performance," 1391(2). Acting pursuant to that statutory mandate, the Secretary of Transportation promulgated Federal Motor Vehicle Safety Standard 208, which required car manufacturers to include passive restraint systems (i.e., devices that work automatically to protect occupants from injury during a collision) in a certain percentage of their cars built in or after See 49 CFR 571.208 (1999). Standard 208 did not require installation of any particular type of passive restraint; instead, it gave manufacturers the option to install automatic *1221 seatbelts, airbags, or any other suitable technology that they might develop, provided the restraint(s) met the performance requirements specified in the rule. Alexis drove her Honda Accord into a tree, and although she was wearing her seatbelt, she nonetheless suffered serious injuries. She then sued Honda under state tort law, alleging that her car was negligently and defectively designed because it lacked a driver's-side airbag. She argued that Congress had empowered the Secretary to set only "minimum standard[s]" for vehicle safety. 15 U.S.C. 1391(2). She also emphasized that the National Traffic and Motor Safety Vehicle Act contains a saving clause, which provides that "[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law." 1397(k). Notwithstanding the statute's saving clause, and notwithstanding the fact that Congress gave the Secretary authority to set only "minimum" safety standards, we held 's state tort suit pre-empted. In reaching that result, we relied heavily on the view of the Secretary of Transportation—expressed in an amicus brief—that Standard 208 "`embodies the Secretary's policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car.'" (quoting Brief for United States as Amicus Curiae, O.T.1999, No. 98-1811, p. 25). Because the Secretary determined that a menu of alternative technologies was "safe," the doctrine of conflict pre-emption barred 's efforts to deem some of those federally approved alternatives "unsafe" under state tort law. The same rationale applies here. Through Phenergan's label, the FDA offered medical professionals a menu of federally approved, "safe" and "effective" alternatives—including IV push—for administering the drug. Through a state tort suit, respondent attempted to deem IV push "unsafe" and "ineffective." To be sure, federal law does not prohibit Wyeth from contraindicating IV push, just as federal law did not prohibit Honda from installing airbags in all its cars. But just as we held that States may not compel the latter, so, too, are States precluded from compelling the former. See also Fidelity Fed. Sav. & Loan If anything, a finding of pre-emption is even more appropriate here because the FDCA—unlike the National Traffic and Motor Safety Vehicle Act—contains no evidence that Congress intended the FDA to set only "minimum standards," and the FDCA does not contain a saving clause.[4] See also ante, at *1222 1200 (conceding Congress' "silence" on the issue). III In its attempt to evade 's applicability to this case, the Court commits both factual and legal errors. First, as a factual matter, it is demonstrably untrue that the FDA failed to consider (and strike a "balance" between) the specific costs and benefits associated with IV push. Second, as a legal matter, does not stand for the legal propositions espoused by the dissenters (and specifically rejected by the majority) in that case. Third, drug labeling by jury verdict undermines both our broader pre-emption jurisprudence and the broader workability of the federal drug-labeling A Phenergan's warning label has been subject to the FDA's strict regulatory oversight since the 1950's. For at least the last 34 years, the FDA has focused specifically on whether IV-push administration of Phenergan is "safe" and "effective" when performed in accordance with Phenergan's label. The agency's ultimate decision—to retain IV push as one means for administering Phenergan, albeit subject to stringent warnings—is reflected in the plain text of Phenergan's label (sometimes in boldfaced font and all-capital letters). And the record contains ample evidence that the FDA specifically considered and reconsidered the strength of Phenergan's IV-push-related warnings in light of new scientific and medical data. The majority's factual assertions to the contrary are mistaken. 1 The FDA's focus on IV push as a means of administering Phenergan dates back at least to 1975. In August of that year, several representatives from both the FDA and Wyeth met to discuss Phenergan's warning label. At that meeting, the FDA specifically proposed "that Phenergan Injection should not be used in Tubex & reg;." 2 Record 583, 586 (Plaintiff's Trial Exh. 17, Internal Correspondence from W.E. Langeland to File (Sept. 5, 1975) (hereinafter 1975 Memo)). "Tubex" is a syringe system used exclusively for IV push. See App. 43. An FDA official explained that the agency's concerns arose from medical-malpractice lawsuits involving IV push of the drug, see 1975 Memo 586, and that the FDA was aware of "5 cases involving amputation where the drug had been administered by Tubex together with several additional cases involving necrosis," Rather than contraindicating Phenergan for IV push, however, the agency and Wyeth agreed "that there was a need for better instruction regarding the problems of intraarterial injection." The next year, the FDA convened an advisory committee to study, among other things, the risks associated with the Tubex system and IV push. App. 294. At the conclusion of its study, the committee recommended an additional IV-push-specific warning for Phenergan's label, see ib but did not recommend eliminating IV push from the drug label altogether. In response to the committee's recommendations, the FDA instructed Wyeth to make several changes to strengthen Phenergan's label, including the addition of upper case warnings related to IV push. See *1223 In the FDA directed Wyeth to amend its label to include the following text: "`[1] When used intravenously, [Phenergan] should be given in a concentration no greater than 25 mg/ml and at a rate not to exceed 25 mg/minute. [2] Injection through a properly running intravenous infusion may enhance the possibility of detecting arterial placement.'" The first of the two quoted sentences refers specifically to IV push; as respondent's medical expert testified at trial, the label's recommended rate of administration (not to exceed 25 mg per minute) refers to "IV push, as opposed to say being in a bag and dripped over a couple of hours." The second of the two quoted sentences refers to IV drip. See In its labeling order, the FDA cited voluminous materials to "suppor[t]" its new and stronger warnings related to IV push and the preferability of IV drip.[5] at 313. One of those articles specifically discussed the relative advantages and disadvantages of IV drip compared to IV push, as well as the costs and benefits of administering Phenergan via IV push.[6] The FDA also cited published case reports from the 1960's of gangrene caused by the intra-arterial injection of Phenergan,[7] and the FDA instructed Wyeth to amend Phenergan's label in accordance with the latest medical research.[8] The FDA also studied drugs similar to Phenergan and cited numerous cautionary articles—one of which urged the agency to consider contraindicating *1224 such drugs for IV use altogether.[9] In "support" of its labeling order, the FDA also cited numerous articles that singled out the inner crook of the elbow—known as the "antecubital fossa" in the medical community—which is both a commonly used injection site, see and a universally recognized high-risk area for inadvertent intra-arterial injections. One of the articles explained: "Because of the numerous superficial positions the ulnar artery might occupy, it has often been entered during attempted venipuncture [of the antecubital fossa]. However, the brachial and the radial arteries might also be quite superficial in the elbow region. The arterial variations of the arm, especially in and about the cubital fossa, are common and numerous. If venipuncture must be performed in this area, a higher index of suspicion must be maintained to forestall misdirected injections." Stone & Donnelly, The Accidental Intra-arterial Injection of Thiopental, 22 Anesthesiology 995, 996 (1961) (footnote omitted; cited in App. 315, no. 20).[10] *1225 Based on this and other research, the FDA ordered Wyeth to include a specific warning related to the use of the antecubital space for IV push.[11] 2 When respondent was injured in Phenergan's label specifically addressed IV push in several passages (sometimes in lieu of and sometimes in addition to those discussed above). For example, the label warned of the risks of intra-arterial injection associated with "aspiration," which is a technique used only in conjunction with IV push.[12] The label also cautioned against the use of "syringes with rigid plungers," App. 390, which are used only to administer the drug via IV push. As respondent's medical expert testified at trial, "by talking plungers and rigid needles, that's the way you do it, to push it with the plunger." Moreover, Phenergan's label devoted almost a full page to discussing the "Tubex system," see which, as noted above, is used only to administer the drug via IV push. While Phenergan's label very clearly authorized the use of IV push, it also made clear that IV push is the delivery method of last resort. The label specified that "[t]he preferred parenteral route of administration is by deep intramuscular injection." If an intramuscular injection is ineffective, then "it is usually preferable to inject [Phenergan] through the tubing of an intravenous infusion set that is known to be functioning satisfactorily." See also (conceding that the best way to determine that an IV set is functioning satisfactorily is to use IV drip). Finally, if for whatever reason a medical professional chooses to use IV push, he or she is on notice that "INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY." ; see also Phenergan's label also directs medical practitioners to choose veins wisely when using IV push: "Due to the close proximity of arteries and veins in the areas most commonly used for intravenous injection, extreme care should be exercised to avoid perivascular extravasation or inadvertent intra-arterial injection. Reports compatible with inadvertent intra-arterial injection of Phenergan Injection, usually in conjunction with other drugs intended for intravenous use, suggest that pain, severe chemical irritation, severe spasm of distal vessels, and resultant gangrene requiring amputation are likely under such circumstances." Thus, it is demonstrably untrue that, as of Phenergan's "labeling did not contain a specific warning about the risks of *1226 IV-push administration." Ante, at 1192. And whatever else might be said about the extensive medical authorities and case reports that the FDA cited in "support" of its approval of IV-push administration of Phenergan, it cannot be said that the FDA "paid no more than passing attention to" IV push, ante, at 1193; nor can it be said that the FDA failed to weigh its costs and benefits, Brief for Respondent 50. 3 For her part, respondent does not dispute the FDA's conclusion that IV push has certain benefits. At trial, her medical practitioners testified that they used IV push in order to help her "in a swift and timely way" when she showed up at the hospital for the second time in one day complaining of "intractable" migraines, "terrible pain," inability to "bear light or sound," sleeplessness, hours-long spasms of "retching" and "vomiting," and when "every possible" alternative treatment had "failed." App. 40 ; Rather than disputing the benefits of IV push, respondent complains that the FDA and Wyeth underestimated its costs (and hence did not provide sufficient warnings regarding its risks). But when the FDA mandated that Phenergan's label read, "INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY," and when the FDA required Wyeth to warn that "[u]nder no circumstances should Phenergan Injection be given by intra-arterial injection," the agency could reasonably assume that medical professionals would take care not to inject Phenergan intra-arterially. See also 71 Fed.Reg. 3934 (noting that a drug's warning label "communicates to health care practitioners the agency's formal, authoritative conclusions regarding the conditions under which the product can be used safely and effectively"). Unfortunately, the physician's assistant who treated respondent in this case disregarded Phenergan's label and pushed the drug into the single spot on her arm that is most likely to cause an inadvertent intra-arterial injection. As noted above, when the FDA approved Phenergan's label, it was textbook medical knowledge that the "antecubital fossa" creates a high risk of inadvertent intra-arterial injection, given the close proximity of veins and arteries. See ; see also The Lippincott Manual of Nursing Practice 99 (noting, in a red-text "NURSING ALERT," that the antecubital fossa is "not recommended" for administering dangerous drugs, "due to the potential for extravasation").[13] According to the physician's assistant who injured respondent, however, "[i]t never crossed my mind" that an antecubital injection of Phenergan could hit an artery. App. 110; see also Oblivious to the risks emphasized in Phenergan's warnings, the physician's assistant pushed a double dose of the drug into an antecubital artery over the course of "[p]robably about three to four minutes," ; notwithstanding respondent's complaints of a "`burn[ing]'" sensation that she subsequently described as "`one of the most extreme pains that I've ever felt,'" at *1227 110, 180-181. And when asked why she ignored Phenergan's label and failed to stop pushing the drug after respondent complained of burning pains, the physician's assistant explained that it would have been "just crazy" to "worr[y] about an [intra-arterial] injection" under the circumstances, The FDA, however, did not think that the risks associated with IV push—especially in the antecubital space—were "just crazy." That is why Phenergan's label so clearly warns against them. B Given the "balance" that the FDA struck between the costs and benefits of administering Phenergan via IV push, compels the pre-emption of tort suits (like this one) that would upset that balance. The contrary conclusion requires turning yesterday's dissent into today's majority opinion. First, the Court denies the existence of a federal-state conflict in this case because Vermont merely countermanded the FDA's determination that IV push is "safe" when performed in accordance with Phenergan's warning label; the Court concludes that there is no conflict because Vermont did not "mandate a particular" label as a "replacement" for the one that the jury nullified, and because the State stopped short of altogether "contraindicating IV-push administration." Ante, at 1194. But as we emphasized in (over the dissent's assertions to the contrary), the degree of a State's intrusion upon federal law is irrelevant—the Supremacy Clause applies with equal force to a state tort law that merely countermands a federal safety determination and to a state law that altogether prohibits car manufacturers from selling cars without airbags. -882, with (STEVENS, J., dissenting). Indeed, as recently as last Term, we held that the Supremacy Clause pre-empts a "[s]tate tort law that requires a manufacturer's catheters to be safer, but hence less effective, than the model the FDA has approved." Riegel, 552 U.S., at It did not matter there that the State stopped short of altogether prohibiting the use of FDA-approved catheters—just as it does not matter here that Vermont stopped short of altogether prohibiting an FDA-approved method for administering Phenergan. See also (BREYER, J., concurring in part and concurring in judgment) (noting it would be an "anomalous result" if pre-emption applied differently to a state tort suit premised on the inadequacy of the FDA's safety regulations and a state law that specifically prohibited an FDA-approved design). Second, the Court today distinguishes because the FDA articulated its pre-emptive intent "without offering States or other interested parties notice or opportunity for comment." Ante, at 1201; see also ante, at 1203. But the Court specifically rejected the argument (again made by the dissenters in that case) that conflict pre-emption is appropriate only where the agency expresses its pre-emptive intent through notice-and-comment rulemaking. ("To insist on a specific expression of agency intent to pre-empt, made after notice-and-comment rulemaking, would be in certain cases to tolerate conflicts that an agency, and therefore Congress, is most unlikely to have intended. The dissent, as we have said, apparently welcomes that result We do not"), with (STEVENS, J., dissenting) (emphasizing that "we generally expect an administrative regulation to declare any intention to *1228 pre-empt state law with some specificity," and that "[t]his expectation serves to ensure that States will be able to have a dialog with agencies regarding pre-emption decisions ex ante through the normal notice-and-comment procedures of the Administrative Procedure Act" ). Indeed, pre-emption is arguably more appropriate here than in because the FDA (unlike the DOT) declared its pre-emptive intent in the Federal Register. See 71 Fed.Reg. 3933-3936. Yet the majority dismisses the FDA's published preamble as "inherently suspect," ante, at 1201, and an afterthought that is entitled to "no weight," ante, at 1204. (opinion of BREYER, J.) (emphasizing that the FDA has a "special understanding of the likely impact of both state and federal requirements, as well as an understanding of whether (or the extent to which) state requirements may interfere with federal objectives," and that "[t]he FDA can translate these understandings into particularized pre-emptive intentions through statements in `regulations, preambles, interpretive statements, and responses to comments'"). Third, the Court distinguishes because the DOT's regulation "bear[s] the force of law," whereas the FDA's preamble does not. Ante, at 1203; see also ante, at 1200. But it is irrelevant that the FDA's preamble does not "bear the force of law" because the FDA's labeling decisions surely do. See It is well within the FDA's discretion to make its labeling decisions through administrative adjudications rather than through less-formal and less-flexible rulemaking proceedings, see and we have never previously held that our pre-emption analysis turns on the agency's choice of the latter over the former. Moreover, it cannot be said that 's outcome hinged on the agency's choice to promulgate a rule. See ante, at 1200, 1203. The Court relied—again over the dissenters' protestations—on materials other than the Secretary's regulation to explain the conflict between state and federal law. with (STEVENS, J., dissenting), and ante, at 1204 (BREYER, J., concurring). Fourth, the Court sandwiches its discussion of between the "presumption against pre-emption," ante, at 1200, and heavy emphasis on "the longstanding coexistence of state and federal law and the FDA's traditional recognition of state-law remedies," ante, at 1203. But the Court specifically rejected the argument (again made by the dissenters in that case) that the "presumption against pre-emption" is relevant to the conflict pre-emption analysis. See -907, (STEVENS, J., dissenting) ("[T]he Court simply ignores the presumption [against pre-emption]"). Rather than invoking such a "presumption," the Court emphasized that it was applying "ordinary," "longstanding," and "experience-proved principles of conflict pre-emption." Under these principles, the sole question is whether there is an "actual conflict" between state and federal law; if so, then pre-emption follows automatically by operation of the Supremacy Clause. See also -, ("[P]etitioner's dealings with the FDA were prompted by [federal law], and the very subject matter of petitioner's statements [to the FDA] were dictated by [federal law]. Accordingly—and in contrast to situations implicating `federalism concerns and the historic primacy of state regulation of matters of health and safety'—no presumption *1229 against pre-emption obtains in this case" (citation omitted)).[14] Finally, the Court went out of its way to emphasize (yet again over the dissenters' objections) that it placed "some weight" on the DOT's amicus brief, which explained the agency's regulatory objectives and the effects of state tort suits on the federal regulatory ; compare (STEVENS, J., dissenting) (criticizing the majority for "uph[olding] a regulatory claim of frustration-of-purposes implied conflict pre-emption based on nothing more than an ex post administrative litigating position and inferences from regulatory history and final commentary"). See also (recognizing that the FDA is "uniquely qualified" to explain whether state law conflicts with the FDA's objectives). Yet today, the FDA's explanation of the conflict between state tort suits and the federal labeling regime, set forth in the agency's amicus brief, is not even mentioned in the Court's opinion. Instead of relying on the FDA's explanation of its own regulatory purposes, the Court relies on a decade-old and now-repudiated statement, which the majority finds preferable. See ante, at 1201-1202, 1203, n. 13. Cf. Riegel, 552 U.S., at ; Altria Group, And Justice BREYER suggests that state tort suits may "help the [FDA]," ante, at 1204 (concurring opinion), notwithstanding the FDA's insistence that state tort suits will "disrupt the agency's balancing of health risks and benefits," Brief for United States as Amicus Curiae 9. does not countenance the use of state tort suits to second-guess the FDA's labeling decisions. And the Court's contrary conclusion has potentially far-reaching consequences. C By their very nature, juries are ill-equipped to perform the FDA's cost-benefit-balancing function. As we explained in Riegel, juries tend to focus on the risk of a *1230 particular product's design or warning label that arguably contributed to a particular plaintiff's injury, not on the overall benefits of that design or label; "the patients who reaped those benefits are not represented in court." 552 U.S., at Indeed, patients like respondent are the only ones whom tort juries ever see, and for a patient like respondent—who has already suffered a tragic accident—Phenergan's risks are no longer a matter of probabilities and potentialities. In contrast, the FDA has the benefit of the long view. Its drug-approval determinations consider the interests of all potential users of a drug, including "those who would suffer without new medical [products]" if juries in all 50 States were free to contradict the FDA's expert determinations. at And the FDA conveys its warnings with one voice, rather than whipsawing the medical community with 50 (or more) potentially conflicting ones. After today's ruling, however, parochialism may prevail. The problem is well illustrated by the labels borne by "vesicant" drugs, many of which are used for chemotherapy. As a class, vesicants are much more dangerous than drugs like Phenergan,[15] but the vast majority of vesicant labels—like Phenergan's—either allow or do not disallow IV push. See Appendix, infra. Because vesicant extravasation can have devastating consequences, and because the potentially lifesaving benefits of these drugs offer hollow solace to the victim of such a tragedy, a jury's cost-benefit analysis in a particular case may well differ from the FDA's. For example, consider Mustargen (mechlorethamine HCl)—the injectable form of mustard gas—which can be used as an anticancer drug. Mustargen's FDA-approved label warns in several places that "This drug is HIGHLY TOXIC."[16] Indeed, the drug is so highly toxic: "Should accidental eye contact occur, copious irrigation for at least 15 minutes with water, normal saline or a balanced salt ophthalmic irrigating solution should be instituted immediately, followed by prompt ophthalmologic consultation. Should accidental skin contact occur, the affected part must be irrigated immediately with copious amounts of water, for at least 15 minutes while removing contaminated clothing and shoes, followed by 2% sodium thiosulfate solution. Medical attention should be sought immediately. Contaminated clothing should be destroyed."[17] Yet when it comes to administering this highly toxic drug, the label provides that "the drug may be injected directly into any suitable vein, [but] it is injected preferably into the rubber or plastic tubing of a flowing intravenous infusion set. This reduces the possibility of severe local reactions due to extravasation or high concentration of the drug." (Emphasis added.) Similarly, the FDA-approved labels for other powerful chemotherapeutic vesicants—including *1231 Dactinomycin, Oxaliplatin, Vinblastine, and Vincristine—specifically allow IV push, notwithstanding their devastating effects when extravasated. The fact that the labels for such drugs allow IV push is striking—both because vesicants are much more dangerous than Phenergan, and also because they are so frequently extravasated, see Boyle & Engelking, Vesicant Extravasation: Myths and Realities, 22 Oncology Nursing Forum 57, 58 (1995) (arguing that the rate of extravasation is "considerably higher" than 6.4% of all vesicant administrations). Regardless of the FDA's reasons for not contraindicating IV push for these drugs, it is odd (to say the least) that a jury in Vermont can now order for Phenergan what the FDA has chosen not to order for mustard gas.[18] * * * To be sure, state tort suits can peacefully coexist with the FDA's labeling regime, and they have done so for decades. Ante, at 1199-1200. But this case is far from peaceful coexistence. The FDA told Wyeth that Phenergan's label renders its use "safe." But the State of Vermont, through its tort law, said: "Not so." The state-law rule at issue here is squarely pre-empted. Therefore, I would reverse the judgment of the Supreme Court of Vermont. APPENDIX TO OPINION OF ALITO, J. ---------------------------------------------------------- Vesicant[1] IV Push[2] ---------------------------------------------------------- Dactinomycin Specifically allowed ---------------------------------------------------------- Mechlorethamine ---------------------------------------------------------- (Mustargen) Specifically allowed ---------------------------------------------------------- Oxaliplatin Specifically allowed ---------------------------------------------------------- Vinblastine Specifically allowed ---------------------------------------------------------- Vincristine Specifically allowed ---------------------------------------------------------- Bleomycin Neither mentioned nor prohibited ---------------------------------------------------------- Carboplatin Neither mentioned nor prohibited ---------------------------------------------------------- Dacarbazine Neither mentioned nor prohibited ---------------------------------------------------------- Mitomycin Neither mentioned nor prohibited ---------------------------------------------------------- Carmustine Not prohibited; IV drip recommended ---------------------------------------------------------- Cisplatin Not prohibited; IV drip recommended ---------------------------------------------------------- Epirubicin Not prohibited; IV drip recommended ---------------------------------------------------------- Etoposide Not prohibited; IV drip recommended ---------------------------------------------------------- Ifosfamide Not prohibited; IV drip recommended ---------------------------------------------------------- Mitoxantrone Not prohibited; IV drip recommended ---------------------------------------------------------- Paclitaxel Not prohibited; IV drip recommended ---------------------------------------------------------- Teniposide Not prohibited; IV drip recommended ---------------------------------------------------------- Vinorelbine Not prohibited; IV drip recommended ---------------------------------------------------------- Daunorubicin Prohibited ---------------------------------------------------------- Doxorubicin Prohibited ----------------------------------------------------------

Justice O'Connor

majority

Chick Kam Choo v. Exxon Corp.

https://www.courtlistener.com/opinion/112073/chick-kam-choo-v-exxon-corp/

https://www.courtlistener.com/api/rest/v3/clusters/112073/

1987-085

This case concerns the propriety of an injunction entered by the United States District Court for the Southern District of Texas. The injunction prohibited specified parties from litigating a certain matter in the Texas state courts. We must determine whether this injunction is permissible under the Anti-Injunction Act, 28 U.S. C. § 2283, which generally bars federal courts from granting injunctions to stay proceedings in state courts. I In 1977 Leong Chong, a resident of the Republic of Singapore, was accidentally killed in that country while performing repair work on a ship owned by respondent Esso Tankers, Inc., a subsidiary of respondent Exxon Corporation. Petitioner Chick Kam Choo, also a resident of Singapore, is Chong's widow.[†] In 1978 she brought suit in the United States District Court for the Southern District of Texas, presenting claims under the Jones Act, 46 U.S. C. § 688, the Death on the High Seas Act (DOHSA), 46 U.S. C. § 761, the general maritime law of the United States, App. 4, and the Texas Wrongful Death Statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-71.031 (1986). Respondents moved for summary judgment on the Jones Act and DOHSA claims, arguing that Chong was not a seaman, which rendered the Jones Act inapplicable, and that Chong had not died on the "high seas" but while the ship was in port, which rendered the DOHSA inapplicable. App. 9-10. Respondents also moved for summary judgment on the claim involving the general maritime law of the United *143 States, arguing that due to the lack of substantial contacts with the United States, the maritime law of Singapore, not that of the United States, governed. Id., at 10 (citing Lauritzen v. Larsen, 345 U.S. 571 (1953); Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)). In addition to seeking summary judgment, respondents moved for dismissal under the doctrine of forum non conveniens, arguing that under the criteria identified in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the District Court was not a convenient forum. In 1980, the District Court, adopting the memorandum and recommendations of a Magistrate, granted respondents' motion for summary judgment on the Jones Act and DOHSA claims. The court agreed with respondents that those statutes were inapplicable. App. 29-31, 34. With respect to the general maritime law claim, the District Court applied factors identified in Lauritzen and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970), to the choice-of-law question and concluded that the "statutory and maritime law of the United States should not be applied." App. 32. This conclusion led the court to grant summary judgment on petitioner's general maritime law claim, as well as to consider whether dismissal of the rest of the case was warranted under the doctrine of forum non conveniens. After reviewing the various factors set out in Gilbert, the court concluded that dismissal was appropriate and accordingly granted respondents' motion to dismiss on forum non conveniens grounds, provided respondents submit to the jurisdiction of the Singapore courts. The Court of Appeals for the Fifth Circuit affirmed. Chick Kam Choo v. Exxon Corp., 699 F.2d 693, cert. denied, 464 U.S. 826 (1983). Rather than commence litigation in Singapore, however, petitioner filed suit in the Texas state courts. Although the state complaint initially included all the claims in the federal complaint, as well as a claim based on Singapore law, petitioner later voluntarily dismissed the federal claims. This *144 left only the Texas state law claim and the Singapore law claim. See Brief for Petitioners 4, n. 4. Respondents briefly succeeded in removing the case to the District Court on the basis of diversity of citizenship, but the Court of Appeals for the Fifth Circuit ultimately held that complete diversity did not exist and the case was returned to the District Court with instructions to remand it to state court. 764 F.2d 1148 (1985). Respondents then initiated a new action in federal court requesting an injunction to prevent petitioner and her attorneys, Benton Musslewhite and Joseph C. Blanks, "from seeking to relitigate in any state forum the issues finally decided" in the federal court's 1980 dismissal. App. 93. Petitioner moved to dismiss, arguing that the Anti-Injunction Act, 28 U.S. C. § 2283, prohibited the issuance of such an injunction. App. 96-98. Respondents, in turn, moved for summary judgment and a final injunction. Id., at 104-108. The District Court granted respondents' motion and permanently enjoined petitioner and her attorneys "from prosecuting or commencing any causes of action or claims against [respondents] in the courts of the State of Texas or any other state . . . arising out of or related to the alleged wrongful death of Leong Chong." Id., at 119. Petitioner appealed, reiterating her contention that the injunction violated the Anti-Injunction Act. A divided panel of the Court of Appeals for the Fifth Circuit rejected this argument. The panel majority concluded that the injunction here fell within the "relitigation" exception to the Act, which permits a federal court to issue an injunction "to protect or effectuate its judgments." The majority reasoned that an injunction was necessary to prevent relitigation of the forum non conveniens issue because petitioner pointed to no additional factor that made the "Texas court in Houston a more convenient forum for this litigation than a United States District Court in Houston." 817 F.2d 307, 312 (1987). The majority acknowledged that due to an "open courts" provision in *145 the Texas Constitution, Art. I, § 13, which is reflected in the Texas Wrongful Death Statute, Tex. Civ. Prac. & Rem. Code Ann. § 71.031 (1986), the state courts may not apply the same, or indeed, any forum non conveniens analysis to petitioner's case. Rather, as the Court of Appeals noted, it is possible that "Texas has constituted itself the world's forum of final resort, where suit for personal injury or death may always be filed if nowhere else." 817 F.2d, at 314 (footnote omitted). In this maritime context, however, the Court of Appeals majority concluded that the so-called "reverse-Erie" uniformity doctrine, see, e. g., Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-223 (1986), required that federal forum non conveniens determinations pre-empt state law. Because the Court of Appeals found any independent state forum non conveniens inquiry to be pre-empted, it held that the injunction was permissible. Chief Judge Clark wrote separately but joined this conclusion. 817 F.2d, at 325. Judge Reavley dissented, maintaining that the Texas courts should be allowed to apply their own open courts forum non conveniens standard. The dissent also criticized the majority's "bold new rule of preemption" which had the effect of "nullify[ing] the Texas open forum law for admiralty cases." Ibid. The Court of Appeals' ruling conflicted with a decision of the Court of Appeals for the Ninth Circuit, Zipfel v. Halliburton Co., 832 F.2d 1477 (1988), cert. pending sub nom. Crowley Maritime Corp. v. Zipfel, No. 87-1122, which held that the Anti-Injunction Act precluded an injunction in similar circumstances. We granted certiorari to resolve the conflict, 484 U.S. 952 (1987), and now reverse and remand. II The Anti-Injunction Act generally prohibits the federal courts from interfering with proceedings in the state courts: "A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly *146 authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S. C. § 2283. The Act, which has existed in some form since 1793, see Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 335, is a necessary concomitant of the Framers' decision to authorize, and Congress' decision to implement, a dual system of federal and state courts. It represents Congress' considered judgment as to how to balance the tensions inherent in such a system. Prevention of frequent federal court intervention is important to make the dual system work effectively. By generally barring such intervention, the Act forestalls "the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court." Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630-631 (1977) (plurality opinion). Due in no small part to the fundamental constitutional independence of the States, Congress adopted a general policy under which state proceedings "should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court." Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 287 (1970). Congress, however, has permitted injunctions in certain, specific circumstances, namely, when expressly authorized by statute, necessary in aid of the court's jurisdiction, or necessary to protect or effectuate the court's judgment. These exceptions are designed to ensure the effectiveness and supremacy of federal law. But as the Court has recognized, the exceptions are narrow and are "not [to] be enlarged by loose statutory construction." Ibid. See also Clothing Workers v. Richman Brothers Co., 348 U.S. 511, 514 (1955). Because an injunction staying state proceedings is proper only if it falls within one of the statutory exceptions, Atlantic Coast Line, supra, at 286-287, and because the last of the three exceptions is the only one even arguably applicable *147 here, the central question in this case is whether the District Court's injunction was necessary "to protect or effectuate" the District Court's 1980 judgment dismissing petitioner's lawsuit from federal court. The relitigation exception was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court. It is founded in the well-recognized concepts of res judicata and collateral estoppel. The proper scope of the exception is perhaps best illustrated by this Court's decision in Atlantic Coast Line, supra. That case arose out of a union's decision to picket a railroad. The railroad immediately sought an injunction from a Federal District Court to prevent the picketing. The court refused to enjoin the union, issuing an order in 1967 that concluded, in part, that the unions were "free to engage in self-help." Id., at 289. The railroad then went to state court, where an injunction was granted. Two years later this Court held that the Railway Labor Act, 45 U.S. C. § 151 et seq., prohibited state court injunctions such as the one the railroad had obtained. Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369 (1969). This decision prompted the union to move in state court to dissolve the injunction, but the state court declined to do so. Rather than appeal, however, the union returned to federal court and obtained an injunction against the enforcement of the state court injunction. The District Court read its 1967 order as deciding not just that federal law did not authorize an injunction, but that federal law pre-empted the State from interfering with the union's right of self-help by issuing an injunction. Accordingly, the court concluded that an injunction was necessary to protect that judgment. The Court of Appeals affirmed, but this Court reversed, holding that the federal court injunction was improper even assuming that the state court's refusal to dissolve its injunction was erroneous. 398 U.S., at 291, n. 5. After carefully *148 reviewing the arguments actually presented to the District Court in the original 1967 litigation and the precise language of the District Court's order, we rejected the District Court's later conclusion that its 1967 order had addressed the propriety of an injunction issued by a state court: "Based solely on the state of the record when the [1967] order was entered, we are inclined to believe that the District Court did not determine whether federal law precluded an injunction based on state law. Not only was that point never argued to the court, but there is no language in the order that necessarily implies any decision on that question." Id., at 290. Thus, as Atlantic Coast Line makes clear, an essential prerequisite for applying the relitigation exception is that the claims or issues which the federal injunction insulates from litigation in state proceedings actually have been decided by the federal court. Moreover, Atlantic Coast Line illustrates that this prerequisite is strict and narrow. The Court assessed the precise state of the record and what the earlier federal order actually said; it did not permit the District Court to render a post hoc judgment as to what the order was intended to say. With these principles in mind, we turn to the two claims petitioner seeks to litigate in the Texas state courts. First, petitioner asserts a claim under Singapore law. App. 40. The District Court did not resolve the merits of this claim in its 1980 order. Rather, the only issue decided by the District Court was that petitioner's claims should be dismissed under the federal forum non conveniens doctrine. Federal forum non conveniens principles simply cannot determine whether Texas courts, which operate under a broad "open-courts" mandate, would consider themselves an appropriate forum for petitioner's lawsuit. See Tex. Const., Art. I, § 13; Tex. Civ. Prac. & Rem. Code Ann. § 71.031 (1986). Cf. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11-12 (1987). Respondents' arguments to the District Court in 1980 reflected *149 this distinction, citing federal cases almost exclusively and discussing only federal forum non conveniens principles. See App. 10-12, 17-26. Moreover, the Court of Appeals expressly recognized that the Texas courts would apply a significantly different forum non conveniens analysis. 817 F.2d, at 314. Thus, whether the Texas state courts are an appropriate forum for petitioner's Singapore law claims has not yet been litigated, and an injunction to foreclose consideration of that issue is not within the relitigation exception. Respondents seek to avoid this problem by arguing that any separate state law determination is pre-empted under the "reverse-Erie" principle of federal maritime law. See generally Offshore Logistics, Inc. v. Tallentire, 477 U. S., at 222-223; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). Under this view, which was shared by the Court of Appeals, the only permissible forum non conveniens determination in this maritime context is the one made by the District Court, and an injunction may properly issue to prevent the state courts from undertaking any different approach. The contention that an independent state forum non conveniens determination is pre-empted by federal maritime law, however, does little to help respondents unless that pre-emption question was itself actually litigated and decided by the District Court. Since respondents concede that it was not, Tr. of Oral Arg. 32, the relitigation exception cannot apply. As we have previously recognized, "a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear." Atlantic Coast Line, 398 U. S., at 294. See also Clothing Workers v. Richman Brothers Co., 348 U.S. 511 (1955). Rather, when a state proceeding presents a federal issue, even a pre-emption *150 issue, the proper course is to seek resolution of that issue by the state court. This is the course respondents must follow with respect to the Singapore law claim. It may be that respondents' reading of the pre-emptive force of federal maritime forum non conveniens determinations is correct. This is a question we need not reach and on which we express no opinion. We simply hold that respondents must present their pre-emption argument to the Texas state courts, which are presumed competent to resolve federal issues. Cf. Pennzoil Co. v. Texaco, Inc., supra, at 15-16; Clothing Workers, supra, at 518. Accordingly, insofar as the District Court enjoined the state courts from considering petitioner's Singapore law claim, the injunction exceeded the restrictions of the Anti-Injunction Act. Finally, petitioner asserts a claim under Texas state law. In contrast to the Singapore law claim, the validity of this claim was adjudicated in the original federal action. Respondents argued to the District Court in 1980 that under applicable choice-of-law principles, the law of Singapore must control petitioner's suit. See App. 10. The District Court expressly agreed, noting that only two of the eight relevant factors "point toward American law," and concluding that the "statutory and maritime law of the United States should not be applied." Id., at 32. Petitioner seeks to relitigate this issue in state court by arguing that "there are substantial and/or significant contacts" with the United States such that "the application of American and Texas law is mandated." Id., at 39. Because in its 1980 decision the District Court decided that Singapore law must control petitioner's lawsuit, a decision that necessarily precludes the application of Texas law, an injunction preventing relitigation of that issue in state court is within the scope of the relitigation exception to the Anti-Injunction Act. Accordingly, insofar as the District Court enjoined the state courts from considering petitioner's *151 claim under the substantive law of Texas, the injunction was permissible. Because the injunction actually entered by the District Court, id., at 118-119, was broader than the limited injunction we find acceptable, we must reverse the judgment approving a broad injunction and remand for entry of a more narrowly tailored order. Of course, the fact that an injunction may issue under the Anti-Injunction Act does not mean that it must issue. On remand the District Court should decide whether it is appropriate to enter an injunction. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This case concerns the propriety of an injunction entered by the United States District Court for the Southern District of Texas. The injunction prohibited specified parties from litigating a certain matter in the Texas state courts. We must determine whether this injunction is permissible under the Anti-Injunction Act, 28 U.S. C. 2283, which generally bars federal courts from granting injunctions to stay proceedings in state courts. I In 1977 Leong Chong, a resident of the Republic of Singapore, was accidentally killed in that country while performing repair work on a ship owned by respondent Esso Tankers, a subsidiary of respondent Exxon Corporation. Petitioner Chick Kam Choo, also a resident of Singapore, is Chong's widow.[†] In 1978 she brought suit in the United States District Court for the Southern District of Texas, presenting claims under the Jones Act, 46 U.S. C. 688, the Death on the High Seas Act (DOHSA), 46 U.S. C. 761, the general maritime law of the United States, App. 4, and the Texas Wrongful Death Statute, Tex. Civ. Prac. & Rem. Code Ann. 71.001-71.031 Respondents moved for summary judgment on the Jones Act and DOHSA claims, arguing that Chong was not a seaman, which rendered the Jones Act inapplicable, and that Chong had not died on the "high seas" but while the ship was in port, which rendered the DOHSA inapplicable. App. 9-10. Respondents also moved for summary judgment on the claim involving the general maritime law of the United *143 States, arguing that due to the lack of substantial contacts with the United States, the maritime law of Singapore, not that of the United States, governed. at 10 ; ). In addition to seeking summary judgment, respondents moved for dismissal under the doctrine of forum non conveniens, arguing that under the criteria identified in Gulf Oil the District Court was not a convenient forum. In 1980, the District Court, adopting the memorandum and recommendations of a Magistrate, granted respondents' motion for summary judgment on the Jones Act and DOHSA claims. The court agreed with respondents that those statutes were inapplicable. App. 29-31, 34. With respect to the general maritime law claim, the District Court applied factors identified in Lauritzen and Hellenic s to the choice-of-law question and concluded that the "statutory and maritime law of the United States should not be applied." App. 32. This conclusion led the court to grant summary judgment on petitioner's general maritime law claim, as well as to consider whether dismissal of the rest of the case was warranted under the doctrine of forum non conveniens. After reviewing the various factors set out in Gilbert, the court concluded that dismissal was appropriate and accordingly granted respondents' motion to dismiss on forum non conveniens grounds, provided respondents submit to the jurisdiction of the Singapore courts. The Court of Appeals for the Fifth Circuit affirmed. Chick Kam Rather than commence litigation in Singapore, however, petitioner filed suit in the Texas state courts. Although the state complaint initially included all the claims in the federal complaint, as well as a claim based on Singapore law, petitioner later voluntarily dismissed the federal claims. This *144 left only the Texas state law claim and the Singapore law claim. See Brief for Petitioners 4, n. 4. Respondents briefly succeeded in removing the case to the District Court on the basis of diversity of citizenship, but the Court of Appeals for the Fifth Circuit ultimately held that complete diversity did not exist and the case was returned to the District Court with instructions to remand it to state court. Respondents then initiated a new action in federal court requesting an injunction to prevent petitioner and her attorneys, Benton Musslewhite and Joseph C. Blanks, "from seeking to relitigate in any state forum the issues finally decided" in the federal court's 1980 dismissal. App. 93. Petitioner moved to dismiss, arguing that the Anti-Injunction Act, 28 U.S. C. 2283, prohibited the issuance of such an injunction. App. 96-98. Respondents, in turn, moved for summary judgment and a final injunction. The District Court granted respondents' motion and permanently enjoined petitioner and her attorneys "from prosecuting or commencing any causes of action or claims against [respondents] in the courts of the State of Texas or any other state arising out of or related to the alleged wrongful death of Leong Chong." Petitioner appealed, reiterating her contention that the injunction violated the Anti-Injunction Act. A divided panel of the Court of Appeals for the Fifth Circuit rejected this argument. The panel majority concluded that the injunction here fell within the "relitigation" exception to the Act, which permits a federal court to issue an injunction "to protect or effectuate its judgments." The majority reasoned that an injunction was necessary to prevent relitigation of the forum non conveniens issue because petitioner pointed to no additional factor that made the "Texas court in Houston a more convenient forum for this litigation than a United States District Court in Houston." The majority acknowledged that due to an "open courts" provision in *145 the Texas Constitution, Art. I, 13, which is reflected in the Texas Wrongful Death Statute, Tex. Civ. Prac. & Rem. Code Ann. 71.031 the state courts may not apply the same, or indeed, any forum non conveniens analysis to petitioner's case. Rather, as the Court of Appeals noted, it is possible that "Texas has constituted itself the world's forum of final resort, where suit for personal injury or death may always be filed if nowhere else." In this maritime context, however, the Court of Appeals majority concluded that the so-called "reverse-Erie" uniformity doctrine, see, e. g., Offshore Logistics, required that federal forum non conveniens determinations pre-empt state law. Because the Court of Appeals found any independent state forum non conveniens inquiry to be pre-empted, it held that the injunction was permissible. Chief Judge Clark wrote separately but joined this conclusion. Judge Reavley dissented, maintaining that the Texas courts should be allowed to apply their own open courts forum non conveniens standard. The dissent also criticized the majority's "bold new rule of preemption" which had the effect of "nullify[ing] the Texas open forum law for admiralty cases." The Court of Appeals' ruling conflicted with a decision of the Court of Appeals for the Ninth Circuit, cert. pending sub nom. Crowley Maritime Corp. v. Zipfel, No. 87-1122, which held that the Anti-Injunction Act precluded an injunction in similar circumstances. We granted certiorari to resolve the conflict, and now reverse and remand. II The Anti-Injunction Act generally prohibits the federal courts from interfering with proceedings in the state courts: "A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly *146 authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S. C. 2283. The Act, which has existed in some form since 1793, see Act of Mar. 2, 1793, ch. 22, 5, is a necessary concomitant of the Framers' decision to authorize, and Congress' decision to implement, a dual system of federal and state courts. It represents Congress' considered judgment as to how to balance the tensions inherent in such a system. Prevention of frequent federal court intervention is important to make the dual system work effectively. By generally barring such intervention, the Act forestalls "the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court." Vendo Due in no small part to the fundamental constitutional independence of the States, Congress adopted a general policy under which state proceedings "should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court." Atlantic Coast R. Congress, however, has permitted injunctions in certain, specific circumstances, namely, when expressly authorized by statute, necessary in aid of the court's jurisdiction, or necessary to protect or effectuate the court's judgment. These exceptions are designed to ensure the effectiveness and supremacy of federal law. But as the Court has recognized, the exceptions are narrow and are "not [to] be enlarged by loose statutory construction." See also Clothing Because an injunction staying state proceedings is proper only if it falls within one of the statutory exceptions, Atlantic Coast at 286-, and because the last of the three exceptions is the only one even arguably applicable *147 here, the central question in this case is whether the District Court's injunction was necessary "to protect or effectuate" the District Court's 1980 judgment dismissing petitioner's lawsuit from federal court. The relitigation exception was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court. It is founded in the well-recognized concepts of res judicata and collateral estoppel. The proper scope of the exception is perhaps best illustrated by this Court's decision in Atlantic Coast That case arose out of a union's decision to picket a railroad. The railroad immediately sought an injunction from a Federal District Court to prevent the picketing. The court refused to enjoin the union, issuing an order in 1967 that concluded, in part, that the unions were "free to engage in self-help." The railroad then went to state court, where an injunction was granted. Two years later this Court held that the Railway Labor Act, 45 U.S. C. 151 et seq., prohibited state court injunctions such as the one the railroad had obtained. Railroad This decision prompted the union to move in state court to dissolve the injunction, but the state court declined to do so. Rather than appeal, however, the union returned to federal court and obtained an injunction against the enforcement of the state court injunction. The District Court read its 1967 order as deciding not just that federal law did not authorize an injunction, but that federal law pre-empted the State from interfering with the union's right of self-help by issuing an injunction. Accordingly, the court concluded that an injunction was necessary to protect that judgment. The Court of Appeals affirmed, but this Court reversed, holding that the federal court injunction was improper even assuming that the state court's refusal to dissolve its injunction was n. 5. After carefully *148 reviewing the arguments actually presented to the District Court in the original 1967 litigation and the precise language of the District Court's order, we rejected the District Court's later conclusion that its 1967 order had addressed the propriety of an injunction issued by a state court: "Based solely on the state of the record when the [1967] order was entered, we are inclined to believe that the District Court did not determine whether federal law precluded an injunction based on state law. Not only was that point never argued to the court, but there is no language in the order that necessarily implies any decision on that question." Thus, as Atlantic Coast makes clear, an essential prerequisite for applying the relitigation exception is that the claims or issues which the federal injunction insulates from litigation in state proceedings actually have been decided by the federal court. Moreover, Atlantic Coast illustrates that this prerequisite is strict and narrow. The Court assessed the precise state of the record and what the earlier federal order actually said; it did not permit the District Court to render a post hoc judgment as to what the order was intended to say. With these principles in mind, we turn to the two claims petitioner seeks to litigate in the Texas state courts. First, petitioner asserts a claim under Singapore law. App. 40. The District Court did not resolve the merits of this claim in its 1980 order. Rather, the only issue decided by the District Court was that petitioner's claims should be dismissed under the federal forum non conveniens doctrine. Federal forum non conveniens principles simply cannot determine whether Texas courts, which operate under a broad "open-courts" mandate, would consider themselves an appropriate forum for petitioner's lawsuit. See Tex. Const., Art. I, 13; Tex. Civ. Prac. & Rem. Code Ann. 71.031 Cf. Pennzoil Respondents' arguments to the District Court in 1980 reflected *149 this distinction, citing federal cases almost exclusively and discussing only federal forum non conveniens principles. See App. 10-12, 17-26. Moreover, the Court of Appeals expressly recognized that the Texas courts would apply a significantly different forum non conveniens Thus, whether the Texas state courts are an appropriate forum for petitioner's Singapore law claims has not yet been litigated, and an injunction to foreclose consideration of that issue is not within the relitigation exception. Respondents seek to avoid this problem by arguing that any separate state law determination is pre-empted under the "reverse-Erie" principle of federal maritime law. See generally Offshore Logistics, 477 U. S., at ; Knickerbocker Ice ; Southern Pacific Under this view, which was shared by the Court of Appeals, the only permissible forum non conveniens determination in this maritime context is the one made by the District Court, and an injunction may properly issue to prevent the state courts from undertaking any different approach. The contention that an independent state forum non conveniens determination is pre-empted by federal maritime law, however, does little to help respondents unless that pre-emption question was itself actually litigated and decided by the District Court. Since respondents concede that it was not, Tr. of Oral Arg. 32, the relitigation exception cannot apply. As we have previously recognized, "a federal court does not have inherent power to ignore the limitations of 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear." Atlantic Coast See also Clothing Rather, when a state proceeding presents a federal issue, even a pre-emption *150 issue, the proper course is to seek resolution of that issue by the state court. This is the course respondents must follow with respect to the Singapore law claim. It may be that respondents' reading of the pre-emptive force of federal maritime forum non conveniens determinations is correct. This is a question we need not reach and on which we express no opinion. We simply hold that respondents must present their pre-emption argument to the Texas state courts, which are presumed competent to resolve federal issues. Cf. Pennzoil ; Clothing Accordingly, insofar as the District Court enjoined the state courts from considering petitioner's Singapore law claim, the injunction exceeded the restrictions of the Anti-Injunction Act. Finally, petitioner asserts a claim under Texas state law. In contrast to the Singapore law claim, the validity of this claim was adjudicated in the original federal action. Respondents argued to the District Court in 1980 that under applicable choice-of-law principles, the law of Singapore must control petitioner's suit. See App. 10. The District Court expressly agreed, noting that only two of the eight relevant factors "point toward American law," and concluding that the "statutory and maritime law of the United States should not be applied." Petitioner seeks to relitigate this issue in state court by arguing that "there are substantial and/or significant contacts" with the United States such that "the application of American and Texas law is mandated." Because in its 1980 decision the District Court decided that Singapore law must control petitioner's lawsuit, a decision that necessarily precludes the application of Texas law, an injunction preventing relitigation of that issue in state court is within the scope of the relitigation exception to the Anti-Injunction Act. Accordingly, insofar as the District Court enjoined the state courts from considering petitioner's *151 claim under the substantive law of Texas, the injunction was permissible. Because the injunction actually entered by the District Court, was broader than the limited injunction we find acceptable, we must reverse the judgment approving a broad injunction and remand for entry of a more narrowly tailored order. Of course, the fact that an injunction may issue under the Anti-Injunction Act does not mean that it must issue. On remand the District Court should decide whether it is appropriate to enter an injunction. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Blackmun

second_dissenting

Nollan v. California Coastal Comm'n

https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/

https://www.courtlistener.com/api/rest/v3/clusters/111958/

1986-163

I do not understand the Court's opinion in this case to implicate in any way the public-trust doctrine. The Court certainly had no reason to address the issue, for the Court of Appeal of California did not rest its decision on Art. X, § 4, of the California Constitution. Nor did the parties base their arguments before this Court on the doctrine. I disagree with the Court's rigid interpretation of the necessary correlation between a burden created by development and a condition imposed pursuant to the State's police power to mitigate that burden. The land-use problems this country faces require creative solutions. These are not advanced by an "eye for an eye" mentality. The close nexus between benefits and burdens that the Court now imposes on permit conditions creates an anomaly in the ordinary requirement that a State's exercise of its police power need be no more than rationally based. See, e. g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981). In my view, the easement exacted from appellants and the problems their development created are adequately related to the governmental interest in providing public access to the beach. Coastal development by its very nature makes public access to the shore generally more difficult. Appellants' structure is part of that general development and, in particular, it diminishes the public's visual access to the ocean and decreases the public's sense that it may have physical access to the beach. These losses in access can be counteracted, at least in part, by the condition on appellants' construction permitting public passage that ensures access along the beach. Traditional takings analysis compels the conclusion that there is no taking here. The governmental action is a valid exercise of the police power, and, so far as the record reveals, *866 has a nonexistent economic effect on the value of appellants' property. No investment-backed expectations were diminished. It is significant that the Nollans had notice of the easement before they purchased the property and that public use of the beach had been permitted for decades. For these reasons, I respectfully dissent. JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. The debate between the Court and JUSTICE BRENNAN illustrates an extremely important point concerning government regulation of the use of privately owned real estate. Intelligent, well-informed public officials may in good faith disagree about the validity of specific types of land-use regulation. Even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court's takings jurisprudence. Yet, because of the Court's remarkable ruling in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987), local governments and officials must pay the price for the necessarily vague standards in this area of the law. In his dissent in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 (1981), JUSTICE BRENNAN proposed a brand new constitutional rule.[*] He argued that a mistake such as the one that a majority of the Court believes that the California Coastal Commission made in this case should automatically give rise to pecuniary liability for a "temporary taking." Id., at 653-661. Notwithstanding the unprecedented chilling effect that such a rule will obviously have on public officials charged with the responsibility for drafting and implementing regulations designed to protect the environment *867 and the public welfare, six Members of the Court recently endorsed JUSTICE BRENNAN'S novel proposal. See First English Evangelical Lutheran Church, supra. I write today to identify the severe tension between that dramatic development in the law and the view expressed by JUSTICE BRENNAN's dissent in this case that the public interest is served by encouraging state agencies to exercise considerable flexibility in responding to private desires for development in a way that threatens the preservation of public resources. See ante, at 846-848. I like the hat that JUSTICE BRENNAN has donned today better than the one he wore in San Diego, and I am persuaded that he has the better of the legal arguments here. Even if his position prevailed in this case, however, it would be of little solace to landuse planners who would still be left guessing about how the Court will react to the next case, and the one after that. As this case demonstrates, the rule of liability created by the Court in First English is a shortsighted one. Like JUSTICE BRENNAN, I hope that "a broader vision ultimately prevails." Ante, at 864. I respectfully dissent.

I do not understand the Court's opinion in this case to implicate in any way the public-trust doctrine. The Court certainly had no reason to address the issue, for the Court of Appeal of California did not rest its decision on Art. X, 4, of the California Constitution. Nor did the parties base their arguments before this Court on the doctrine. I disagree with the Court's rigid interpretation of the necessary correlation between a burden created by development and a condition imposed pursuant to the State's police power to mitigate that burden. The land-use problems this country faces require creative solutions. These are not advanced by an "eye for an eye" mentality. The close nexus between benefits and burdens that the Court now imposes on permit conditions creates an anomaly in the ordinary requirement that a State's exercise of its police power need be no more than rationally based. See, e. g., In my view, the easement exacted from appellants and the problems their development created are adequately related to the governmental interest in providing public access to the beach. Coastal development by its very nature makes public access to the shore generally more difficult. Appellants' structure is part of that general development and, in particular, it diminishes the public's visual access to the ocean and decreases the public's sense that it may have physical access to the beach. These losses in access can be counteracted, at least in part, by the condition on appellants' construction permitting public passage that ensures access along the beach. Traditional takings analysis compels the conclusion that there is no taking here. The governmental action is a valid exercise of the police power, and, so far as the record reveals, *866 has a nonexistent economic effect on the value of appellants' property. No investment-backed expectations were diminished. It is significant that the Nollans had notice of the easement before they purchased the property and that public use of the beach had been permitted for decades. For these reasons, I respectfully dissent. JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. The debate between the Court and JUSTICE BRENNAN illustrates an extremely important point concerning government regulation of the use of privately owned real estate. Intelligent, well-informed public officials may in good faith disagree about the validity of specific types of land-use regulation. Even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court's takings jurisprudence. Yet, because of the Court's remarkable ruling in First English Evangelical Lutheran of local governments and officials must pay the price for the necessarily vague standards in this area of the law. In his dissent in San Diego Gas & Electric JUSTICE BRENNAN proposed a brand new constitutional rule.[*] He argued that a mistake such as the one that a majority of the Court believes that the California Coastal Commission made in this case should automatically give rise to pecuniary liability for a "temporary taking." Notwithstanding the unprecedented chilling effect that such a rule will obviously have on public officials charged with the responsibility for drafting and implementing regulations designed to protect the environment *867 and the public welfare, six Members of the Court recently endorsed JUSTICE BRENNAN'S novel proposal. See First English Evangelical Lutheran I write today to identify the severe tension between that dramatic development in the law and the view expressed by JUSTICE BRENNAN's dissent in this case that the public interest is served by encouraging state agencies to exercise considerable flexibility in responding to private desires for development in a way that threatens the preservation of public resources. See ante, at 846-848. I like the hat that JUSTICE BRENNAN has donned today better than the one he wore in San Diego, and I am persuaded that he has the better of the legal arguments here. Even if his position prevailed in this case, however, it would be of little solace to landuse planners who would still be left guessing about how the Court will react to the next case, and the one after that. As this case demonstrates, the rule of liability created by the Court in First English is a shortsighted one. Like JUSTICE BRENNAN, I hope that "a broader vision ultimately prevails." Ante, at 864. I respectfully dissent.

Justice Kavanaugh

majority

Air & Liquid Systems Corp. v. DeVries

https://www.courtlistener.com/opinion/4601080/air-liquid-systems-corp-v-devries/

https://www.courtlistener.com/api/rest/v3/clusters/4601080/

2018-009

In maritime tort cases, we act as a common-law court, subject to any controlling statutes enacted by Congress. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 507–508 (2008). This maritime tort case raises a question about the scope of a manufacturer’s duty to warn. The manufac- turers here produced equipment such as pumps, blowers, and turbines for three Navy ships. The equipment re- quired asbestos insulation or asbestos parts in order to function as intended. When used on the ships, the equip- ment released asbestos fibers into the air. Two Navy veterans who were exposed to asbestos on the ships devel- oped cancer and later died. The veterans’ families sued the equipment manufacturers, claiming that the manufac- turers were negligent in failing to warn of the dangers of asbestos. The plaintiffs contend that a manufacturer has a duty to warn when the manufacturer’s product requires incorpo- 2 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court ration of a part (here, asbestos) that the manufacturer knows is likely to make the integrated product dangerous for its intended uses. The manufacturers respond that they had no duty to warn because they did not themselves incorporate the asbestos into their equipment; rather, the Navy added the asbestos to the equipment after the equipment was already on board the ships. We agree with the plaintiffs. In the maritime tort con- text, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manu- facturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. The District Court did not apply that test when granting summary judgment to the defendant manufacturers. Although we do not agree with all of the reasoning of the U. S. Court of Appeals for the Third Circuit, we affirm its judgment requiring the District Court to reconsider its prior grants of summary judgment to the defendant manufacturers. I Kenneth McAfee served in the U. S. Navy for more than 20 years. As relevant here, McAfee worked on the U. S. S. Wanamassa from 1977 to 1980 and then on the U. S. S. Commodore from 1982 to 1986. John DeVries served in the U. S. Navy from 1957 to 1960. He worked on the U. S. S. Turner. Those ships were outfitted with equipment such as pumps, blowers, and turbines. That equipment required asbestos insulation or asbestos parts in order to function as intended. When used as intended, that equipment can cause the release of asbestos fibers into the air. If inhaled or ingested, those fibers may cause various illnesses. Five businesses—Air and Liquid Systems, CBS, Foster Wheeler, Ingersoll Rand, and General Electric—produced Cite as: 586 U. S. ____ (2019) 3 Opinion of the Court some of the equipment that was used on the ships. Al- though the equipment required asbestos insulation or asbestos parts in order to function as intended, those businesses did not always incorporate the asbestos into their products. Instead, the businesses delivered much of the equipment to the Navy without asbestos. The equip- ment was delivered in a condition known as “bare-metal.” In those situations, the Navy later added the asbestos to the equipment.1 McAfee and DeVries allege that their exposure to the asbestos caused them to develop cancer. They and their wives sued the equipment manufacturers in Pennsylvania state court. (McAfee and DeVries later died during the course of the ongoing litigation.) The plaintiffs did not sue the Navy because they apparently believed the Navy was immune. See Feres v. United States, 340 U.S. 135 (1950). The plaintiffs also could not recover much from the manu- facturers of the asbestos insulation and asbestos parts because those manufacturers had gone bankrupt. As to the manufacturers of the equipment—such as the pumps, blowers, and turbines—the plaintiffs claimed that those manufacturers negligently failed to warn them of the dangers of asbestos in the integrated products. If the manufacturers had provided warnings, the workers on the ships presumably could have worn respiratory masks and thereby avoided the danger. Invoking federal maritime jurisdiction, the manufactur- ers removed the cases to federal court. The manufacturers then moved for summary judgment on the ground that manufacturers should not be liable for harms caused by later-added third-party parts. That defense is known as the “bare-metal defense.” —————— 1 Sometimes, the equipment manufacturers themselves added the asbestos to the equipment. Even in those situations, however, the Navy later replaced the asbestos parts with third-party asbestos parts. 4 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court The District Court granted the manufacturers’ motions for summary judgment. The U. S. Court of Appeals for the Third Circuit vacated and remanded. In re Asbestos Prods. Liability Litigation, 873 F.3d 232, 241 (2017). The Third Circuit held that “a manufacturer of a bare-metal product may be held liable for a plaintiff ’s injuries suf- fered from later-added asbestos-containing materials” if the manufacturer could foresee that the product would be used with the later-added asbestos-containing materials. Id., at 240. We granted certiorari to resolve a disagreement among the Courts of Appeals about the validity of the bare-metal defense under maritime law. 584 U. S. ___ (2018). Com- pare 873 F.3d 232 (case below), with Lindstrom v. A-C Prod. Liability Trust, 424 F.3d 488 (CA6 2005). II Article III of the Constitution grants the federal courts jurisdiction over maritime cases. Under 28 U.S. C. §1333, the federal courts have “original jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” When a federal court decides a maritime case, it acts as a federal “common law court,” much as state courts do in state common-law cases. Exxon Shipping Co., 554 U.S., at 507. Subject to direction from Congress, the federal courts fashion federal maritime law. See id., at 508, n. 21; Miles v. Apex Marine Corp., 498 U.S. 19, 27 (1990); United States v. Reliable Transfer Co., 421 U.S. 397, 409 (1975); Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 42–44 (1934). In formulating federal maritime law, the federal courts may examine, among other sources, judicial opinions, legislation, treatises, and scholarly writings. See Exxon Co., U. S. A. v. Sofec, Inc., 517 U.S. 830, 839 (1996); East River S. S. Corp. v. Transamerica Cite as: 586 U. S. ____ (2019) 5 Opinion of the Court Delaval Inc., 476 U.S. 858, 864 (1986). This is a maritime tort case. The plaintiffs allege that the defendant equipment manufacturers were negligent in failing to warn about the dangers of asbestos. “The gen- eral maritime law has recognized the tort of negligence for more than a century . . . .” Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001); see also Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 631–632 (1959). Maritime law has likewise recognized common-law principles of products liability for decades. See East River S. S. Corp., 476 U.S., at 865. In this negligence case, we must decide whether a man- ufacturer has a duty to warn when the manufacturer’s product requires later incorporation of a dangerous part— here, asbestos—in order for the integrated product to function as intended. We start with basic tort-law principles. Tort law im- poses “a duty to exercise reasonable care” on those whose conduct presents a risk of harm to others. 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §7, p. 77 (2005). For the manufacturer of a product, the general duty of care includes a duty to warn when the manufacturer “knows or has reason to know” that its product “is or is likely to be dangerous for the use for which it is supplied” and the manufacturer “has no reason to believe” that the product’s users will realize that dan- ger. 2 Restatement (Second) of Torts §388, p. 301 (1963– 1964). In tort cases, the federal and state courts have not reached consensus on how to apply that general tort-law “duty to warn” principle when the manufacturer’s product requires later incorporation of a dangerous part in order for the integrated product to function as intended. Three approaches have emerged. The first approach is the more plaintiff-friendly foresee- ability rule that the Third Circuit adopted in this case: A 6 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court manufacturer may be liable when it was foreseeable that the manufacturer’s product would be used with another product or part, even if the manufacturer’s product did not require use or incorporation of that other product or part. See, e.g., 873 F.3d, at 240; Kochera v. Foster Wheeler, LLC, 2015 WL 5584749, *4 (SD Ill., Sept. 23, 2015); Chi- cano v. General Elec. Co., 2004 WL 2250990, *9 (ED Pa., Oct. 5, 2004); McKenzie v. A. W. Chesterson Co., 277 Ore. App. 728, 749–750, 373 P.3d 150, 162 (2016). The second approach is the more defendant-friendly bare-metal defense that the manufacturers urge here: If a manufacturer did not itself make, sell, or distribute the part or incorporate the part into the product, the manufac- turer is not liable for harm caused by the integrated prod- uct—even if the product required incorporation of the part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses. See, e.g., Lindstrom, 424 F.3d, at 492, 495–497; Evans v. CBS Corp., 230 F. Supp. 3d 397, 403–405 (Del. 2017); Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1041 (Haw. 2013). The third approach falls between those two approaches. Under the third approach, foreseeability that the product may be used with another product or part that is likely to be dangerous is not enough to trigger a duty to warn. But a manufacturer does have a duty to warn when its product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses. Under that approach, the manufacturer may be liable even when the manufacturer does not itself incorporate the required part into the product. See, e.g., Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760, 769–770 (ND Ill. 2014); In re New York City Asbestos Litigation, 27 N.Y. 3d 765, 793–794, 59 N.E.3d 458, 474 (2016); May v. Air & Liquid Systems Corp., 446 Md. 1, 29, 129 A.3d 984, 1000 (2015). We conclude that the third approach is the most appro- Cite as: 586 U. S. ____ (2019) 7 Opinion of the Court priate for this maritime tort context. To begin, we agree with the manufacturers that a rule of mere foreseeability would sweep too broadly. See gener- ally 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §7, Comment j, at 82; 2 Restatement (Second) of Torts §395, Comment j, at 330. Many products can foreseeably be used in numerous ways with numerous other products and parts. Requiring a product manufac- turer to imagine and warn about all of those possible uses—with massive liability looming for failure to correctly predict how its product might be used with other prod- ucts or parts—would impose a difficult and costly burden on manufacturers, while simultaneously overwarning users. In light of that uncertainty and unfairness, we reject the foreseeability approach for this maritime context. That said, we agree with the plaintiffs that the bare- metal defense ultimately goes too far in the other direc- tion. In urging the bare-metal defense, the manufacturers contend that a business generally has “no duty” to “control the conduct of a third person as to prevent him from caus- ing physical harm to another.” Id., §315, at 122. That is true, but it is also beside the point here. After all, when a manufacturer’s product is dangerous in and of itself, the manufacturer “knows or has reason to know” that the product “is or is likely to be dangerous for the use for which it is supplied.” Id., §388, at 301. The same holds true, we conclude, when the manufacturer’s product re- quires incorporation of a part that the manufacturer knows or has reason to know is likely to make the inte- grated product dangerous for its intended uses. As a matter of maritime tort law, we find no persuasive reason to distinguish those two similar situations for purposes of a manufacturer’s duty to warn. See Restatement (Third) of Torts: Products Liability §2, Comment i, p. 30 (1997) (“[W]arnings also may be needed to inform users and 8 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court consumers of nonobvious and not generally known risks that unavoidably inhere in using or consuming the product”). Importantly, the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product. See generally G. Calabresi, The Costs of Accidents 311–318 (1970). The product manufacturer knows the nature of the ultimate integrated product and is typically more aware of the risks associated with that integrated product. By contrast, a parts manufacturer may be aware only that its part could conceivably be used in any number of ways in any number of products. A parts manufacturer may not always be aware that its part will be used in a way that poses a risk of danger.2 To be sure, as the manufacturers correctly point out, issuing a warning costs time and money. But the burden usually is not significant. Manufacturers already have a duty to warn of the dangers of their own products. That duty typically imposes a light burden on manufacturers. See, e.g., Davis v. Wyeth Labs., Inc., 399 F.2d 121, 131 (CA9 1968); Butler v. L. Sonneborn Sons, Inc., 296 F.2d 623, 625–626 (CA2 1961); Ross Labs. v. Thies, 725 P.2d 1076, 1079 (Alaska 1986); Moran v. Faberge, Inc., 273 Md. 538, 543–544, 332 A.2d 11, 15 (1975). Requiring a manu- facturer to also warn when the manufacturer knows or has reason to know that a required later-added part is likely to make the integrated product dangerous for its intended uses should not meaningfully add to that burden. The manufacturers also contend that requiring a warn- ing even when they have not themselves incorporated the part into the product will lead to uncertainty about when product manufacturers must provide warnings. But the —————— 2 We do not rule out the possibility that, in certain circumstances, the parts manufacturer may also have a duty to warn. Cite as: 586 U. S. ____ (2019) 9 Opinion of the Court manufacturers have not pointed to any substantial confu- sion in those jurisdictions that have adopted this ap- proach. And the rule that we adopt here is tightly cabined. The rule does not require that manufacturers warn in cases of mere foreseeability. The rule requires that manu- facturers warn only when their product requires a part in order for the integrated product to function as intended. The manufacturers further assert that requiring a warning in these circumstances will lead to excessive warning of consumers. Again, however, we are not aware of substantial overwarning problems in those jurisdictions that have adopted this approach. And because the rule we adopt here applies only in certain narrow circumstances, it will not require a plethora of new warnings. Requiring the product manufacturer to warn when its product requires incorporation of a part that makes the integrated product dangerous for its intended uses—and not just when the manufacturer itself incorporates the part into the product—is especially appropriate in the maritime context. Maritime law has always recognized a “special solicitude for the welfare” of those who undertake to “venture upon hazardous and unpredictable sea voy- ages.” American Export Lines, Inc. v. Alvez, 446 U.S. 274, 285 (1980) (internal quotation marks omitted). The plain- tiffs in this case are the families of veterans who served in the U. S. Navy. Maritime law’s longstanding solicitude for sailors reinforces our decision to require a warning in these circumstances. See Yamaha Motor Corp., U. S. A. v. Calhoun, 516 U.S. 199, 213 (1996); Miles, 498 U.S., at 36; Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387 (1970). For those reasons, we conclude as follows: In the mari- time tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its 10 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. We do not purport to define the proper tort rule outside of the maritime context. One final point for clarity: Courts have determined that this rule applies in certain related situations, including when: (i) a manufacturer directs that the part be incorpo- rated, see, e.g., Bell v. Foster Wheeler Energy Corp., 2016 WL 5780104, *6–*7 (ED La., Oct. 4, 2016); (ii) a manufac- turer itself makes the product with a part that the manu- facturer knows will require replacement with a similar part, see, e.g., Chesher v. 3M Co., 234 F. Supp. 3d 693, 713–714 (S. C. 2017); Quirin, 17 F. Supp. 3d, at 769–770; May, 446 Md., at 29, 129 A. 3d, at 1000; or (iii) a product would be useless without the part, see, e.g., In re New York City Asbestos Litigation, 27 N.Y. 3d, at 793–794, 59 N.E. 3d, at 474. In all of those situations, courts have said that the product in effect requires the part in order for the integrated product to function as intended. We agree. The maritime tort rule we adopt today therefore encom- passes those situations, so long as the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. * * * In the maritime tort context, we hold that a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. The District Court should evaluate the evidence under that rule. Although we do not agree with all of the reasoning of the Third Circuit, we Cite as: 586 U. S. ____ (2019) 11 Opinion of the Court affirm its judgment requiring the District Court to recon- sider its prior grants of summary judgment to the defend- ant manufacturers. It is so ordered. Cite as: 586 U. S. ____ (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–1104 _________________ AIR AND LIQUID SYSTEMS CORP., ET AL., PETITIONERS v. ROBERTA G. DEVRIES, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JOHN B. DEVRIES, DECEASED, ET AL.

In maritime tort cases, we act as a common-law court, subject to any controlling statutes enacted by Congress. See Exxon Shipping 507–508 (2008). This maritime tort case raises a question about the scope of a manufacturer’s duty to warn. The manufac- turers here produced equipment such as pumps, blowers, and turbines for three Navy ships. The equipment re- quired asbestos insulation or asbestos parts in order to function as intended. When used on the ships, the equip- ment released asbestos fibers into the air. Two Navy veterans who were exposed to asbestos on the ships devel- oped cancer and later died. The veterans’ families sued the equipment manufacturers, claiming that the manufac- turers were negligent in failing to warn of the dangers of asbestos. The plaintiffs contend that a manufacturer has a duty to warn when the manufacturer’s product requires incorpo- 2 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court ration of a part (here, asbestos) that the manufacturer knows is likely to make the integrated product dangerous for its intended uses. The manufacturers respond that they had no duty to warn because they did not themselves incorporate the asbestos into their equipment; rather, the Navy added the asbestos to the equipment after the equipment was already on board the ships. We agree with the plaintiffs. In the maritime tort con- text, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manu- facturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. The District Court did not apply that test when granting summary judgment to the defendant manufacturers. Although we do not agree with all of the reasoning of the U. S. Court of Appeals for the Third Circuit, we affirm its judgment requiring the District Court to reconsider its prior grants of summary judgment to the defendant manufacturers. I Kenneth McAfee served in the U. S. Navy for more than 20 years. As relevant here, McAfee worked on the U. S. S. Wanamassa from 1977 to 1980 and then on the U. S. S. Commodore from 1982 to 1986. John DeVries served in the U. S. Navy from 1957 to 1960. He worked on the U. S. S. Turner. Those ships were outfitted with equipment such as pumps, blowers, and turbines. That equipment required asbestos insulation or asbestos parts in order to function as intended. When used as intended, that equipment can cause the release of asbestos fibers into the air. If inhaled or ingested, those fibers may cause various illnesses. Five businesses—Air and Liquid Systems, CBS, Foster Wheeler, Ingersoll Rand, and General Electric—produced Cite as: 586 U. S. (2019) 3 Opinion of the Court some of the equipment that was used on the ships. Al- though the equipment required asbestos insulation or asbestos parts in order to function as intended, those businesses did not always incorporate the asbestos into their products. Instead, the businesses delivered much of the equipment to the Navy without asbestos. The equip- ment was delivered in a condition known as “bare-metal.” In those situations, the Navy later added the asbestos to the equipment.1 McAfee and DeVries allege that their exposure to the asbestos caused them to develop cancer. They and their wives sued the equipment manufacturers in Pennsylvania state court. (McAfee and DeVries later died during the course of the ongoing litigation.) The plaintiffs did not sue the Navy because they apparently believed the Navy was immune. See The plaintiffs also could not recover much from the manu- facturers of the asbestos insulation and asbestos parts because those manufacturers had gone bankrupt. As to the manufacturers of the equipment—such as the pumps, blowers, and turbines—the plaintiffs claimed that those manufacturers negligently failed to warn them of the dangers of asbestos in the integrated products. If the manufacturers had provided warnings, the workers on the ships presumably could have worn respiratory masks and thereby avoided the danger. Invoking federal maritime jurisdiction, the manufactur- ers removed the cases to federal court. The manufacturers then moved for summary judgment on the ground that manufacturers should not be liable for harms caused by later-added third-party parts. That defense is known as the “bare-metal defense.” —————— 1 Sometimes, the equipment manufacturers themselves added the asbestos to the equipment. Even in those situations, however, the Navy later replaced the asbestos parts with third-party asbestos parts. 4 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court The District Court granted the manufacturers’ motions for summary judgment. The U. S. Court of Appeals for the Third Circuit vacated and remanded. In re Asbestos Prods. Liability The Third Circuit held that “a manufacturer of a bare-metal product may be held liable for a plaintiff ’s injuries suf- fered from later-added asbestos-containing materials” if the manufacturer could foresee that the product would be used with the later-added asbestos-containing materials. We granted certiorari to resolve a disagreement among the Courts of Appeals about the validity of the bare-metal defense under maritime law. 584 U. S. (2018). Com- pare (case below), with II Article III of the Constitution grants the federal courts jurisdiction over maritime cases. Under 28 U.S. C. the federal courts have “original jurisdiction, exclusive of the courts of the States, of [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” When a federal court decides a maritime case, it acts as a federal “common law court,” much as state courts do in state common-law cases. Exxon Shipping Co., 554 U.S., at 507. Subject to direction from Congress, the federal courts fashion federal maritime law. See ; ; United ; Detroit Trust Co. v. The Thomas Barlum, 3 U.S. 21, 42–44 (1934). In formulating federal maritime law, the federal courts may examine, among other sources, judicial opinions, legislation, treatises, and scholarly writings. See Exxon Co., U. S. A. v. Sofec, Inc., 517 U.S. 830, 839 ; East River S. S. v. Transamerica Cite as: 586 U. S. (2019) 5 Opinion of the Court Delaval Inc., This is a maritime tort case. The plaintiffs allege that the defendant equipment manufacturers were negligent in failing to warn about the dangers of asbestos. “The gen- eral maritime law has recognized the tort of negligence for more than a century” Norfolk Shipbuilding & Drydock ; see also Maritime law has likewise recognized common-law principles of products liability for decades. See East River S. S. In this negligence case, we must decide whether a man- ufacturer has a duty to warn when the manufacturer’s product requires later incorporation of a dangerous part— here, asbestos—in order for the integrated product to function as intended. We start with basic tort-law principles. Tort law im- poses “a duty to exercise reasonable care” on those whose conduct presents a risk of harm to others. 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm p. 77 For the manufacturer of a product, the general duty of care includes a duty to warn when the manufacturer “knows or has reason to know” that its product “is or is likely to be dangerous for the use for which it is supplied” and the manufacturer “has no reason to believe” that the product’s users will realize that dan- ger. 2 Restatement (Second) of Torts p. 301 (1963– 1964). In tort cases, the federal and state courts have not reached consensus on how to apply that general tort-law “duty to warn” principle when the manufacturer’s product requires later incorporation of a dangerous part in order for the integrated product to function as intended. Three approaches have emerged. The first approach is the more plaintiff-friendly foresee- ability rule that the Third Circuit adopted in this case: A 6 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court manufacturer may be liable when it was foreseeable that the manufacturer’s product would be used with another product or part, even if the manufacturer’s product did not require use or incorporation of that other product or part. See, 873 F.3d, ; ; Chi- (ED Pa., Oct. 5, 2004); McKenzie v. A. W. Chesterson Co., 7 Ore. App. 728, 749–750, The second approach is the more defendant-friendly bare-metal defense that the manufacturers urge here: If a manufacturer did not itself make, sell, or distribute the part or incorporate the part into the product, the manufac- turer is not liable for harm caused by the integrated prod- uct—even if the product required incorporation of the part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses. See, 495–497; Evans v. CBS ; Cabasug v. Crane Co., 989 F. Supp. 2d 10, The third approach falls between those two approaches. Under the third approach, foreseeability that the product may be used with another product or part that is likely to be dangerous is not enough to trigger a duty to warn. But a manufacturer does have a duty to warn when its product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses. Under that approach, the manufacturer may be liable even when the manufacturer does not itself incorporate the required part into the product. See, ; In re New York City Asbestos N.Y. 3d 765, 793–794, 59 N.E.3d 458, 474 ; v. Air & Liquid Systems 1 A.3d 984, We conclude that the third approach is the most appro- Cite as: 586 U. S. (2019) 7 Opinion of the Court priate for this maritime tort context. To begin, we agree with the manufacturers that a rule of mere foreseeability would sweep too broadly. See gener- ally 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm Comment j, at 82; 2 Restatement (Second) of Torts Comment j, at 330. Many products can foreseeably be used in numerous ways with numerous other products and parts. Requiring a product manufac- turer to imagine and warn about all of those possible uses—with massive liability looming for failure to correctly predict how its product might be used with other prod- ucts or parts—would impose a difficult and costly burden on manufacturers, while simultaneously overwarning users. In light of that uncertainty and unfairness, we reject the foreseeability approach for this maritime context. That said, we agree with the plaintiffs that the bare- metal defense ultimately goes too far in the other direc- tion. In urging the bare-metal defense, the manufacturers contend that a business generally has “no duty” to “control the conduct of a third person as to prevent him from caus- ing physical harm to another.” at 122. That is true, but it is also beside the point here. After all, when a manufacturer’s product is dangerous in and of itself, the manufacturer “knows or has reason to know” that the product “is or is likely to be dangerous for the use for which it is supplied.” at 301. The same holds true, we conclude, when the manufacturer’s product re- quires incorporation of a part that the manufacturer knows or has reason to know is likely to make the inte- grated product dangerous for its intended uses. As a matter of maritime tort law, we find no persuasive reason to distinguish those two similar situations for purposes of a manufacturer’s duty to warn. See Restatement (Third) of Torts: Products Liability Comment i, p. 30 (1997) (“[W]arnings also may be needed to inform users and 8 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court consumers of nonobvious and not generally known risks that unavoidably inhere in using or consuming the product”). Importantly, the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product. See generally G. Calabresi, The Costs of Accidents 311–318 (1970). The product manufacturer knows the nature of the ultimate integrated product and is typically more aware of the risks associated with that integrated product. By contrast, a parts manufacturer may be aware only that its part could conceivably be used in any number of ways in any number of products. A parts manufacturer may not always be aware that its part will be used in a way that poses a risk of danger.2 To be sure, as the manufacturers correctly point out, issuing a warning costs time and money. But the burden usually is not significant. Manufacturers already have a duty to warn of the dangers of their own products. That duty typically imposes a light burden on manufacturers. See, (CA9 1968); Butler v. L. Sonneborn Sons, Inc., 6 F.2d 623, 625–626 (CA2 1961); Ross Labs. v. Thies, 725 P.2d 1076, 1079 ; Moran v. Faberge, Inc., 3 Md. 538, 543–544, Requiring a manu- facturer to also warn when the manufacturer knows or has reason to know that a required later-added part is likely to make the integrated product dangerous for its intended uses should not meaningfully add to that burden. The manufacturers also contend that requiring a warn- ing even when they have not themselves incorporated the part into the product will lead to uncertainty about when product manufacturers must provide warnings. But the —————— 2 We do not rule out the possibility that, in certain circumstances, the parts manufacturer may also have a duty to warn. Cite as: 586 U. S. (2019) 9 Opinion of the Court manufacturers have not pointed to any substantial confu- sion in those jurisdictions that have adopted this ap- proach. And the rule that we adopt here is tightly cabined. The rule does not require that manufacturers warn in cases of mere foreseeability. The rule requires that manu- facturers warn only when their product requires a part in order for the integrated product to function as intended. The manufacturers further assert that requiring a warning in these circumstances will lead to excessive warning of consumers. Again, however, we are not aware of substantial overwarning problems in those jurisdictions that have adopted this approach. And because the rule we adopt here applies only in certain narrow circumstances, it will not require a plethora of new warnings. Requiring the product manufacturer to warn when its product requires incorporation of a part that makes the integrated product dangerous for its intended uses—and not just when the manufacturer itself incorporates the part into the product—is especially appropriate in the maritime context. Maritime law has always recognized a “special solicitude for the welfare” of those who undertake to “venture upon hazardous and unpredictable sea voy- ages.” American Export Lines, 446 U.S. 4, 285 (1980) (internal quotation marks omitted). The plain- tiffs in this case are the families of veterans who served in the U. S. Navy. Maritime law’s longstanding solicitude for sailors reinforces our decision to require a warning in these circumstances. See Yamaha Motor U. S. A. v. Calhoun, ; ; (1970). For those reasons, we conclude as follows: In the mari- time tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its 10 AIR & LIQUID SYSTEMS CORP. v. DEVRIES Opinion of the Court intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. We do not purport to define the proper tort rule outside of the maritime context. One final point for clarity: Courts have determined that this rule applies in certain related situations, including when: (i) a manufacturer directs that the part be incorpo- rated, see, Bell v. Foster Wheeler Energy WL 5780104, *6–*7 ; (ii) a manufac- turer itself makes the product with a part that the manu- facturer knows will require replacement with a similar part, see, 713–714 ; 17 F. Supp. 3d, at ; 446 Md., at 1 A. 3d, at ; or (iii) a product would be useless without the part, see, In re New York City Asbestos N.Y. 3d, at 793–794, 59 N.E. 3d, at 474. In all of those situations, courts have said that the product in effect requires the part in order for the integrated product to function as intended. We agree. The maritime tort rule we adopt today therefore encom- passes those situations, so long as the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. * * * In the maritime tort context, we hold that a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. The District Court should evaluate the evidence under that rule. Although we do not agree with all of the reasoning of the Third Circuit, we Cite as: 586 U. S. (2019) 11 Opinion of the Court affirm its judgment requiring the District Court to recon- sider its prior grants of summary judgment to the defend- ant manufacturers. It is so ordered. Cite as: 586 U. S. (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–1104 AIR AND LIQUID SYSTEMS CORP., ET AL., PETITIONERS v. ROBERTA G. DEVRIES, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JOHN B. DEVRIES, DECEASED, ET AL.

Justice Stevens

concurring

United States v. Felix

https://www.courtlistener.com/opinion/112713/united-states-v-felix/

https://www.courtlistener.com/api/rest/v3/clusters/112713/

1991-052

While I join Parts I and II of the Court's opinion, I do not join Part III because I do not think there is "considerable justification," ante, at 387-388, for the Court of Appeals' conclusion that the Double Jeopardy Clause, as interpreted in Grady v. Corbin, 495 U.S. 508 (1990), bars prosecution of Felix for the conspiracy charge contained in count 1 of the indictment. In Grady, we held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S., at 510. But as the dissenting opinion of the Court of Appeals explained, "the overt acts at issue here did not meaningfully `establish' an essential element of the conspiracy" because there is no overt act requirement in the federal drug conspiracy statute and the overt acts did not establish an agreement between Felix and his co-conspirators. 926 F.2d 1522, 1536 (CA10 1991) (Anderson, J., dissenting). I would thus reverse for the reasons explained in Parts I and II of the Court's opinion, ante, at 381-387, and Part III—B of the dissenting opinion of the Court of Appeals, 926 F.2d, at 1536-1539.

While I join Parts I and II of the Court's opinion, I do not join Part III because I do not think there is "considerable justification," ante, at 387-388, for the Court of ' conclusion that the Double Jeopardy Clause, as interpreted in bars prosecution of Felix for the conspiracy charge contained in count 1 of the indictment. In Grady, we held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." But as the dissenting opinion of the Court of explained, "the overt acts at issue here did not meaningfully `establish' an essential element of the conspiracy" because there is no overt act requirement in the federal drug conspiracy statute and the overt acts did not establish an agreement between Felix and his co-conspirators. I would thus reverse for the reasons explained in Parts I and II of the Court's opinion, ante, at 381-387, and Part III—B of the dissenting opinion of the Court of 926 F.2d, at -1539.

Justice Thomas

majority

Musacchio v. United States

https://www.courtlistener.com/opinion/3171723/musacchio-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/3171723/

2015-020

In this case, the Government failed to object to a jury instruction that erroneously added an element that it had to prove, and petitioner failed to press a statute-of- limitations defense until his appeal. We address two questions arising from the parties’ failures to raise timely challenges. We first consider how a court should assess a challenge to the sufficiency of the evidence in a criminal case when a jury instruction adds an element to the charged crime and the Government fails to object. We conclude that the sufficiency of the evidence should be assessed against the elements of the charged crime. We next consider whether the statute-of-limitations defense contained in 18 U.S. C. §3282(a) (the general federal criminal statute of limitations) may be successfully raised for the first time on appeal. We conclude that it may not be. I Petitioner Michael Musacchio served as president of a logistics company, Exel Transportation Services (ETS), until his resignation in 2004. In 2005, he formed a rival company, Total Transportation Services (TTS). Musacchio 2 MUSACCHIO v. UNITED STATES Opinion of the Court was soon joined there by Roy Brown, who previously headed ETS’s information-technology department. At TTS, Brown, using a password, continued to access ETS’s com- puter system without ETS’s authorization. Brown also gave Musacchio access to ETS’s system. This improper access of ETS’s system kept on until early 2006. In November 2010, a grand jury indicted Musacchio under 18 U.S. C. §1030(a)(2)(C). Under that provision, a person commits a crime when he “intentionally accesses a computer without authorization or exceeds authorized access,” and in doing so “obtains . . . information from any protected computer.” (Emphasis added.) The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access with- out authorization; and (2) obtaining access with authoriza- tion but then using that access improperly. See ibid.; §1030(e)(6) (defining “exceeds authorized access”). Count 1 of the indictment charged Musacchio with conspiring to commit both types of improper access. Count 23 charged him with making unauthorized access to ETS’s e-mail server “[o]n or about” November 24, 2005. App. 70–71.1 In 2012, the Government filed a superseding indictment amending those charges. Count 1 dropped the charge of conspiracy to exceed authorized access, limiting that charge to conspiracy to make unauthorized access. Count 2 amended the allegations originally contained in count 23 by alleging that Musacchio accessed specific ETS e-mail accounts “[o]n or about” November 23–25, 2005. Id., at 83–84. The Government later filed a second superseding indictment that made no changes relevant here. Musacchio proceeded to a jury trial. At no time before or during trial did he argue that his prosecution violated —————— 1 Counts 2 through 22 charged other defendants with exceeding au- thorized access to specific e-mail accounts. App. 68–70. Those defend- ants pleaded guilty, and later indictments dropped those counts. Cite as: 577 U. S. ____ (2016) 3 Opinion of the Court the 5-year statute of limitations applicable to count 2. See 18 U.S. C. §3282(a) (providing general 5-year statute of limitations). For the Government’s part, it submitted proposed jury instructions on the conspiracy count before and during the trial. Each set of proposed instructions identified that count as involving “Unauthorized Access to Protected Computer[s],” and none required the jury additionally to find that Musacchio conspired to exceed authorized access to protected computers. Musacchio did not propose in- structions on the conspiracy count. Diverging from the indictment and the proposed in- structions, the District Court instructed the jury on count 1 that §1030(a)(2)(C) “makes it a crime for a person to intentionally access a computer without authorization and exceed authorized access.” App. 168 (emphasis added). The parties agree that this instruction was erroneous: By using the conjunction “and” when referring to both ways of violating §1030(a)(2)(C), the instruction required the Government to prove an additional element. Yet the Government did not object to this error in the instructions. The jury found Musacchio guilty on both counts 1 and 2. The District Court sentenced him to 60 months’ impris- onment. Musacchio appealed, making the two challenges that he again advances in this Court. First, he challenged the sufficiency of the evidence supporting his conspiracy conviction on count 1. He maintained, moreover, that the sufficiency of the evidence should be assessed against the erroneous jury instruction that included the additional element. Second, he argued, for the first time, that his prosecution on count 2—for unauthorized access—was barred by the 5-year statute of limitations because the superseding indictment was filed seven years after the crime and did not relate back to the timely original indictment. The Fifth Circuit rejected both challenges and affirmed 4 MUSACCHIO v. UNITED STATES Opinion of the Court Musacchio’s conviction. 590 Fed. Appx. 359 (2014) ( per curiam). First, the Court of Appeals concluded that it should assess Musacchio’s sufficiency challenge against the charged elements of the conspiracy count, not against the erroneous jury instruction. See id., at 362–363. Un- der Fifth Circuit precedent, the court explained, errone- ously heightened jury instructions generally become the binding “law of the case” on appeal. Id., at 362 (internal quotation marks omitted). Circuit precedent supplies an exception, however, when (1) the jury instruction is “ ‘pa- tently erroneous,’ ” and (2) “ ‘the issue is not misstated in the indictment.’ ” Ibid. (quoting United States v. Guevara, 408 F.3d 252, 258 (CA5 2005)). The Fifth Circuit con- cluded that those conditions for applying the exception were satisfied. See 590 Fed. Appx., at 362–363. The court explained that the instruction’s requirement of an addi- tional element was “an obvious clerical error,” and that the indictment correctly charged Musacchio only with “Conspiracy To Make Unauthorized Access to [a] Protected Computer.” Id., at 362. Therefore, the Fifth Circuit did not assess Musacchio’s sufficiency challenge under the heightened jury instruction. Id., at 362–363. Because Musacchio did not dispute that the evidence was sufficient to support a conviction under the elements set out in the indictment, the Fifth Circuit rejected his challenge. Id., at 363. Second, the Fifth Circuit rejected Musacchio’s statute- of-limitations defense, concluding that he had “waived” the defense by failing to raise it at trial. Id., at 363, 364. We granted certiorari to resolve two questions that have divided the lower courts. 576 U. S. ___ (2015). The first question is whether the sufficiency of the evidence in a criminal case should be measured against the elements described in the jury instructions where those instruc- tions, without objection, require the Government to prove more elements than do the statute and indictment. Com- Cite as: 577 U. S. ____ (2016) 5 Opinion of the Court pare, e.g., United States v. Romero, 136 F.3d 1268, 1272– 1273 (CA10 1998) (explaining that sufficiency is measured against heightened jury instructions), with Guevara, supra, at 258 (CA5) (adopting an exception to that rule). The second question is whether a statute-of-limitations defense not raised at or before trial is reviewable on ap- peal. Compare, e.g., United States v. Franco-Santiago, 681 F.3d 1, 12, and n. 18 (CA1 2012) (limitations defense not raised and preserved before or at trial is reviewable on appeal for plain error), with United States v. Walsh, 700 F.2d 846, 855–856 (CA2 1983) (limitations defense not properly raised below is not reviewable on appeal). II We first address how a court should assess a sufficiency challenge when a jury instruction adds an element to the charged crime and the Government fails to object. We hold that, when a jury instruction sets forth all the ele- ments of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction. That conclusion flows from the nature of a court’s task in evaluating a sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses whether “the government’s case was so lacking that it should not have even been submitted to the jury.” Burks v. United States, 437 U.S. 1, 16 (1978) (emphasis deleted). On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 314–315 (1979). The reviewing court considers only the “legal” question “whether, after viewing the evi- dence in the light most favorable to the prosecution, any 6 MUSACCHIO v. UNITED STATES Opinion of the Court rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt.” Id., at 319 (emphasis in original). That limited review does not in- trude on the jury’s role “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Ibid. A reviewing court’s limited determination on sufficiency review thus does not rest on how the jury was instructed. When a jury finds guilt after being instructed on all ele- ments of the charged crime plus one more element, the jury has made all the findings that due process requires. If a jury instruction requires the jury to find guilt on the elements of the charged crime, a defendant will have had a “meaningful opportunity to defend” against the charge. Id., at 314. And if the jury instruction requires the jury to find those elements “beyond a reasonable doubt,” the defendant has been accorded the procedure that this Court has required to protect the presumption of innocence. Id., at 314–315. The Government’s failure to introduce evi- dence of an additional element does not implicate the principles that sufficiency review protects. All that a defendant is entitled to on a sufficiency challenge is for the court to make a “legal” determination whether the evi- dence was strong enough to reach a jury at all. Id., at 319. The Government’s failure to object to the heightened jury instruction thus does not affect the court’s review for sufficiency of the evidence.2 —————— 2 In resolving the first question presented, we leave open several mat- ters. First, we express no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment, even if the indictment charges one or more elements not required by statute. Second, we do not suggest that the Government adds an element to a crime for purposes of sufficiency review when the indictment charges different means of committing a crime in the conjunctive. Third, we also do not suggest that an errone- ous jury instruction cannot result in reversible error just because the evidence was sufficient to support a conviction. Cite as: 577 U. S. ____ (2016) 7 Opinion of the Court Musacchio does not contest that the indictment here properly charged him with the statutory elements for conspiracy to obtain unauthorized access. The jury in- structions required the jury to find all of the elements of that charged offense beyond a reasonable doubt. Nor does he dispute that the evidence was sufficient to convict him of the crime charged in the indictment—of conspiring to make unauthorized access. Accordingly, the Fifth Circuit correctly rejected his sufficiency challenge. The Fifth Circuit erred, however, in basing that conclu- sion on the law-of-the-case doctrine. See 590 Fed. Appx., at 362–363. That doctrine does not apply here. The law- of-the-case doctrine generally provides that “ ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Pepper v. United States, 562 U.S. 476, 506 (2011) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). The doctrine “expresses the practice of courts generally to refuse to reopen what has been decided,” but it does not “limit [courts’] power.” Messenger v. Anderson, 225 U.S. 436, 444 (1912). Thus, the doctrine may describe an appellate court’s decision not to depart from a ruling that it made in a prior appeal in the same case. See C. Wright et al., 18B Federal Practice and Procedure §4478, p. 646, and n. 16 (2d ed. 2002) (collecting cases). But the doctrine is “something of a misnomer” when used to de- scribe how an appellate court assesses a lower court’s rulings. United States v. Wells, 519 U.S. 482, 487, n. 4 (1997). An appellate court’s function is to revisit matters decided in the trial court. When an appellate court re- views a matter on which a party failed to object below, its review may well be constrained by other doctrines such as waiver, forfeiture, and estoppel, as well as by the type of challenge that it is evaluating. But it is not bound by district court rulings under the law-of-the-case doctrine. That doctrine does not bear on how to assess a sufficiency 8 MUSACCHIO v. UNITED STATES Opinion of the Court challenge when a jury convicts a defendant after being instructed—without an objection by the Government— on all charged elements of a crime plus an additional element. III We now consider whether a defendant may successfully raise the statute-of-limitations bar in 18 U.S. C. §3282(a) for the first time on appeal. Musacchio argues that he may do so, either because §3282(a) imposes a nonwaivable limit on federal courts’ subject-matter jurisdiction or because a previously unraised limitations claim may constitute plain error that can be noticed on appeal. We disagree with both points, and hold that a defendant cannot successfully raise this statute-of-limitations bar for the first time on appeal. A Statutes of limitations and other filing deadlines “ordi- narily are not jurisdictional.” Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 8). We treat a time bar as jurisdictional only if Congress has “clearly stated” that it is. Id., at ___ (slip op., at 6–7); (brackets and internal quotation marks omitted); see, e.g., Henderson v. Shinseki, 562 U.S. 428, 436, 439 (2011) (requiring a “clear indication” that a statute is jurisdic- tional (internal quotation marks omitted)). To determine whether Congress has made the necessary clear state- ment, we examine the “text, context, and relevant histori- cal treatment” of the provision at issue. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010). Congress has not made such a clear statement here. Rather, the statutory text, context, and history establish that §3282(a) imposes a nonjurisdictional defense that becomes part of a case only if a defendant raises it in the district court. Cite as: 577 U. S. ____ (2016) 9 Opinion of the Court The statutory text suggests that §3282(a) does not im- pose a jurisdictional limit. Section 3282(a) provides: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next af- ter such offense shall have been committed.” Although §3282(a) uses mandatory language, it does not expressly refer to subject-matter jurisdiction or speak in jurisdictional terms. The text of §3282(a) does not, there- fore, provide a “clear indication that Congress wanted that provision to be treated as having jurisdictional attributes.” Henderson, supra, at 439. Context confirms that §3282(a) does not impose a juris- dictional limit. Federal courts’ general criminal subject- matter jurisdiction comes from 18 U.S. C. §3231, which states: “The district courts . . . shall have original jurisdic- tion . . . of all offenses against the laws of the United States.” Section 3231 speaks squarely to federal courts’ “jurisdiction,” in marked contrast to §3282(a), which does not mention “jurisdiction” or a variant of that term. And, nothing in §3231 “conditions its jurisdictional grant on” compliance with §3282(a)’s statute of limitations. Reed Elsevier, supra, at 165. This context supports the conclu- sion that §3282(a) is not jurisdictional. The history of the limitations bar in §3282(a) demon- strates that it is a defense that becomes part of a case only if the defendant presses it in the district court. This Court held in United States v. Cook, 17 Wall. 168 (1872), that a statute of limitations—identical in all relevant respects to §3282(a)—was “a matter of defence and must be pleaded or given in evidence by the accused.” Id., at 181; see §32, 1 Stat. 119 (statute of limitations); see also Cook, supra, at 173, and n. * (citing and describing statute of limitations). When a defendant introduces the limitations defense into 10 MUSACCHIO v. UNITED STATES Opinion of the Court the case, the Government then has “the right to reply or give evidence” on the limitations claim. 17 Wall., at 179. Cook was decided more than 140 years ago, and we have adhered to its holding. Just three Terms ago, we reaf- firmed that “[c]ommission of [a federal] crime within the statute-of-limitations period is not an element of the . . . offense,” and “it is up to the defendant to raise the limita- tions defense.” Smith v. United States, 568 U. S. ___, ___ (2013) (slip op., at 6) (citing Cook; emphasis deleted); see also Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128, 135 (1917) (“The statute of limitations is a defense and must be asserted on the trial by the de- fendant in criminal cases . . . ” (citing Cook)). There is, in sum, a long history of treating the operative language in §3282(a) as providing a nonjurisdictional defense that a defendant must press at trial to insert into the case. In keeping with §3282(a)’s text, context, and history, we conclude that §3282(a) provides a nonjurisdictional de- fense, not a jurisdictional limit. B Because §3282(a) does not impose a jurisdictional limit, the failure to raise it at or before trial means that it is reviewable on appeal—if at all—only for plain error. See Fed. Rule Crim. Proc. 52(b) (providing for consideration of “[a] plain error that affects substantial rights” even though the error “was not brought to the court’s atten- tion”). We conclude, however, that a district court’s failure to enforce an unraised limitations defense under §3282(a) cannot be a plain error.3 —————— 3 Because we conclude that the failure to enforce §3282(a)’s limita- tions defense cannot be plain error, we do not resolve whether the failure to raise that defense in the District Court amounts to waiver (which some courts have held to preclude all appellate review of the defense) or forfeiture (which some courts have held to allow at least plain-error review). See United States v. Franco-Santiago, 681 F.3d 1, Cite as: 577 U. S. ____ (2016) 11 Opinion of the Court As explained above, a statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of estab- lishing compliance with the statute of limitations by pre- senting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. See Cook, supra, at 179. When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment. When a defendant does not press the defense, then, there is no error for an appellate court to correct—and certainly no plain error. A defendant thus cannot successfully raise the statute- of-limitations defense in §3282(a) for the first time on appeal. The Fifth Circuit correctly refused to consider Musacchio’s limitations defense here. * * * For the foregoing reasons, we affirm the judgment of the Fifth Circuit. It is so ordered. —————— 12, n. 18 (CA1 2012) (collecting cases)

In this case, the Government failed to object to a jury instruction that erroneously added an element that it had to prove, and petitioner failed to press a statute-of- limitations defense until his appeal. We address two questions arising from the parties’ failures to raise timely challenges. We first consider how a court should assess a challenge to the sufficiency of the evidence in a criminal case when a jury instruction adds an element to the charged crime and the Government fails to object. We conclude that the sufficiency of the evidence should be assessed against the elements of the charged crime. We next consider whether the statute-of-limitations defense contained in 18 U.S. C. (the general federal criminal statute of limitations) may be successfully raised for the first time on appeal. We conclude that it may not be. I Petitioner Michael Musacchio served as president of a logistics company, Exel Transportation Services (ETS), until his resignation in 2004. In he formed a rival company, Total Transportation Services (TTS). Musacchio 2 MUSACCHIO v. UNITED STATES Opinion of the Court was soon joined there by Roy Brown, who previously headed ETS’s information-technology department. At TTS, Brown, using a password, continued to access ETS’s com- puter system without ETS’s authorization. Brown also gave Musacchio access to ETS’s system. This improper access of ETS’s system kept on until early 2006. In November 2010, a grand jury indicted Musacchio under 18 U.S. C. Under that provision, a person commits a crime when he “intentionally accesses a computer without authorization or exceeds authorized access,” and in doing so “obtains information from any protected computer.” (Emphasis added.) The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access with- out authorization; and (2) obtaining access with authoriza- tion but then using that access improperly. See ibid.; (defining “exceeds authorized access”). Count 1 of the indictment charged Musacchio with conspiring to commit both types of improper access. Count 23 charged him with making unauthorized access to ETS’s e-mail server “[o]n or about” November 24, App. 70–71.1 In 2012, the Government filed a superseding indictment amending those charges. Count 1 dropped the charge of conspiracy to exceed authorized access, limiting that charge to conspiracy to make unauthorized access. Count 2 amended the allegations originally contained in count 23 by alleging that Musacchio accessed specific ETS e-mail accounts “[o]n or about” November 23–25, at 83–84. The Government later filed a second superseding indictment that made no changes relevant here. Musacchio proceeded to a jury trial. At no time before or during trial did he argue that his prosecution violated —————— 1 Counts 2 through 22 charged other defendants with exceeding au- thorized access to specific e-mail accounts. App. 68–70. Those defend- ants pleaded guilty, and later indictments dropped those counts. Cite as: 577 U. S. (20) 3 Opinion of the Court the 5-year statute of limitations applicable to count 2. See 18 U.S. C. (providing general 5-year statute of limitations). For the Government’s part, it submitted proposed jury instructions on the conspiracy count before and during the trial. Each set of proposed instructions identified that count as involving “Unauthorized Access to Protected Computer[s],” and none required the jury additionally to find that Musacchio conspired to exceed authorized access to protected computers. Musacchio did not propose in- structions on the conspiracy count. Diverging from the indictment and the proposed in- structions, the District Court instructed the jury on count 1 that “makes it a crime for a person to intentionally access a computer without authorization and exceed authorized access.” App. 8 (emphasis added). The parties agree that this instruction was erroneous: By using the conjunction “and” when referring to both ways of violating the instruction required the Government to prove an additional element. Yet the Government did not object to this error in the instructions. The jury found Musacchio guilty on both counts 1 and 2. The District Court sentenced him to 60 months’ impris- onment. Musacchio appealed, making the two challenges that he again advances in this Court. First, he challenged the sufficiency of the evidence supporting his conspiracy conviction on count 1. He maintained, moreover, that the sufficiency of the evidence should be assessed against the erroneous jury instruction that included the additional element. Second, he argued, for the first time, that his prosecution on count 2—for unauthorized access—was barred by the 5-year statute of limitations because the superseding indictment was filed seven years after the crime and did not relate back to the timely original indictment. The Fifth Circuit rejected both challenges and affirmed 4 ( per curiam). First, the Court of Appeals concluded that it should assess Musacchio’s sufficiency challenge against the charged elements of the conspiracy count, not against the erroneous jury instruction. See –363. Un- der Fifth Circuit precedent, the court explained, errone- ously heightened jury instructions generally become the binding “law of the case” on appeal. (internal quotation marks omitted). Circuit precedent supplies an exception, however, when (1) the jury instruction is “ ‘pa- tently erroneous,’ ” and (2) “ ‘the issue is not misstated in the indictment.’ ” ). The Fifth Circuit con- cluded that those conditions for applying the exception were satisfied. See 590 Fed. Appx., –363. The court explained that the instruction’s requirement of an addi- tional element was “an obvious clerical error,” and that the indictment correctly charged Musacchio only with “Conspiracy To Make Unauthorized Access to [a] Protected Computer.” Therefore, the Fifth Circuit did not assess Musacchio’s sufficiency challenge under the heightened jury instruction. –363. Because Musacchio did not dispute that the evidence was sufficient to support a conviction under the elements set out in the indictment, the Fifth Circuit rejected his challenge. at 363. Second, the Fifth Circuit rejected Musacchio’s statute- of-limitations defense, concluding that he had “waived” the defense by failing to raise it at trial. We granted certiorari to resolve two questions that have divided the lower courts. 576 U. S. (2015). The first question is whether the sufficiency of the evidence in a criminal case should be measured against the elements described in the jury instructions where those instruc- tions, without objection, require the Government to prove more elements than do the statute and indictment. Com- Cite as: 577 U. S. (20) 5 Opinion of the Court pare, e.g., United 1272– 1273 (CA10 1998) (explaining that sufficiency is measured against heightened jury instructions), with Guevara, at (adopting an exception to that rule). The second question is whether a statute-of-limitations defense not raised at or before trial is reviewable on ap- peal. Compare, e.g., United 681 F.3d 1, 12, and n. 18 (CA1 2012) (limitations defense not raised and preserved before or at trial is reviewable on appeal for plain error), with United States v. Walsh, 700 F.2d 846, 855–856 (CA2 1983) (limitations defense not properly raised below is not reviewable on appeal). II We first address how a court should assess a sufficiency challenge when a jury instruction adds an element to the charged crime and the Government fails to object. We hold that, when a jury instruction sets forth all the ele- ments of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction. That conclusion flows from the nature of a court’s task in evaluating a sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses whether “the government’s case was so lacking that it should not have even been submitted to the jury.” On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 314–315 (1979). The reviewing court considers only the “legal” question “whether, after viewing the evi- dence in the light most favorable to the prosecution, any 6 MUSACCHIO v. UNITED STATES Opinion of the Court rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt.” (emphasis in original). That limited review does not in- trude on the jury’s role “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” A reviewing court’s limited determination on sufficiency review thus does not rest on how the jury was instructed. When a jury finds guilt after being instructed on all ele- ments of the charged crime plus one more element, the jury has made all the findings that due process requires. If a jury instruction requires the jury to find guilt on the elements of the charged crime, a defendant will have had a “meaningful opportunity to defend” against the charge. And if the jury instruction requires the jury to find those elements “beyond a reasonable doubt,” the defendant has been accorded the procedure that this Court has required to protect the presumption of innocence. –315. The Government’s failure to introduce evi- dence of an additional element does not implicate the principles that sufficiency review protects. All that a defendant is entitled to on a sufficiency challenge is for the court to make a “legal” determination whether the evi- dence was strong enough to reach a jury at all. The Government’s failure to object to the heightened jury instruction thus does not affect the court’s review for sufficiency of the evidence.2 —————— 2 In resolving the first question presented, we leave open several mat- ters. First, we express no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment, even if the indictment charges one or more elements not required by statute. Second, we do not suggest that the Government adds an element to a crime for purposes of sufficiency review when the indictment charges different means of committing a crime in the conjunctive. Third, we also do not suggest that an errone- ous jury instruction cannot result in reversible error just because the evidence was sufficient to support a conviction. Cite as: 577 U. S. (20) 7 Opinion of the Court Musacchio does not contest that the indictment here properly charged him with the statutory elements for conspiracy to obtain unauthorized access. The jury in- structions required the jury to find all of the elements of that charged offense beyond a reasonable doubt. Nor does he dispute that the evidence was sufficient to convict him of the crime charged in the indictment—of conspiring to make unauthorized access. Accordingly, the Fifth Circuit correctly rejected his sufficiency challenge. The Fifth Circuit erred, however, in basing that conclu- sion on the law-of-the-case doctrine. See 590 Fed. Appx., –363. That doctrine does not apply here. The law- of-the-case doctrine generally provides that “ ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” (quoting (1983)). The doctrine “expresses the practice of courts generally to refuse to reopen what has been decided,” but it does not “limit [courts’] power.” Thus, the doctrine may describe an appellate court’s decision not to depart from a ruling that it made in a prior appeal in the same case. See C. Wright et al., 18B Federal Practice and Procedure p. 646, and n. (2d ed. 2002) (collecting cases). But the doctrine is “something of a misnomer” when used to de- scribe how an appellate court assesses a lower court’s rulings. United (1997). An appellate court’s function is to revisit matters decided in the trial court. When an appellate court re- views a matter on which a party failed to object below, its review may well be constrained by other doctrines such as waiver, forfeiture, and estoppel, as well as by the type of challenge that it is evaluating. But it is not bound by district court rulings under the law-of-the-case doctrine. That doctrine does not bear on how to assess a sufficiency 8 MUSACCHIO v. UNITED STATES Opinion of the Court challenge when a jury convicts a defendant after being instructed—without an objection by the Government— on all charged elements of a crime plus an additional element. III We now consider whether a defendant may successfully raise the statute-of-limitations bar in 18 U.S. C. for the first time on appeal. Musacchio argues that he may do so, either because imposes a nonwaivable limit on federal courts’ subject-matter jurisdiction or because a previously unraised limitations claim may constitute plain error that can be noticed on appeal. We disagree with both points, and hold that a defendant cannot successfully raise this statute-of-limitations bar for the first time on appeal. A Statutes of limitations and other filing deadlines “ordi- narily are not jurisdictional.” Sebelius v. Auburn Regional Medical Center, 568 U. S. (2013) (slip op., at 8). We treat a time bar as jurisdictional only if Congress has “clearly stated” that it is. at (slip op., at 6–7); (brackets and internal quotation marks omitted); see, e.g., (requiring a “clear indication” that a statute is jurisdic- tional (internal quotation marks omitted)). To determine whether Congress has made the necessary clear state- ment, we examine the “text, context, and relevant histori- cal treatment” of the provision at issue. Reed 6 Congress has not made such a clear statement here. Rather, the statutory text, context, and history establish that imposes a nonjurisdictional defense that becomes part of a case only if a defendant raises it in the district court. Cite as: 577 U. S. (20) 9 Opinion of the Court The statutory text suggests that does not im- pose a jurisdictional limit. Section 3282(a) provides: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next af- ter such offense shall have been committed.” Although uses mandatory language, it does not expressly refer to subject-matter jurisdiction or speak in jurisdictional terms. The text of does not, there- fore, provide a “clear indication that Congress wanted that provision to be treated as having jurisdictional attributes.” Context confirms that does not impose a juris- dictional limit. Federal courts’ general criminal subject- matter jurisdiction comes from 18 U.S. C. which states: “The district courts shall have original jurisdic- tion of all offenses against the laws of the United States.” Section 3231 speaks squarely to federal courts’ “jurisdiction,” in marked contrast to which does not mention “jurisdiction” or a variant of that term. And, nothing in “conditions its jurisdictional grant on” compliance with ’s statute of limitations. Reed at 5. This context supports the conclu- sion that is not jurisdictional. The history of the limitations bar in demon- strates that it is a defense that becomes part of a case only if the defendant presses it in the district court. This Court held in United 17 Wall. 8 that a statute of limitations—identical in all relevant respects to —was “a matter of defence and must be pleaded or given in evidence by the accused.” ; see 1 Stat. 119 (statute of limitations); see also at 173, and n. * (citing and describing statute of limitations). When a defendant introduces the limitations defense into 10 MUSACCHIO v. UNITED STATES Opinion of the Court the case, the Government then has “the right to reply or give evidence” on the limitations was decided more than 140 years ago, and we have adhered to its holding. Just three Terms ago, we reaf- firmed that “[c]ommission of [a federal] crime within the statute-of-limitations period is not an element of the offense,” and “it is up to the defendant to raise the limita- tions defense.” Smith v. United States, 568 U. S. (2013) (slip op., at 6) (citing ; emphasis deleted); see also (“The statute of limitations is a defense and must be asserted on the trial by the de- fendant in criminal cases ” (citing )). There is, in sum, a long history of treating the operative language in as providing a nonjurisdictional defense that a defendant must press at trial to insert into the case. In keeping with ’s text, context, and history, we conclude that provides a nonjurisdictional de- fense, not a jurisdictional limit. B Because does not impose a jurisdictional limit, the failure to raise it at or before trial means that it is reviewable on appeal—if at all—only for plain error. See Fed. Rule Crim. Proc. 52(b) (providing for consideration of “[a] plain error that affects substantial rights” even though the error “was not brought to the court’s atten- tion”). We conclude, however, that a district court’s failure to enforce an unraised limitations defense under cannot be a plain error.3 —————— 3 Because we conclude that the failure to enforce ’s limita- tions defense cannot be plain error, we do not resolve whether the failure to raise that defense in the District Court amounts to waiver (which some courts have held to preclude all appellate review of the defense) or forfeiture (which some courts have held to allow at least plain-error review). See United Cite as: 577 U. S. (20) 11 Opinion of the Court As explained above, a statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of estab- lishing compliance with the statute of limitations by pre- senting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. See When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment. When a defendant does not press the defense, then, there is no error for an appellate court to correct—and certainly no plain error. A defendant thus cannot successfully raise the statute- of-limitations defense in for the first time on appeal. The Fifth Circuit correctly refused to consider Musacchio’s limitations defense here. * * * For the foregoing reasons, we affirm the judgment of the Fifth Circuit. It is so ordered. —————— 12, n. 18 (CA1 2012) (collecting cases)

Justice Rehnquist

concurring

Deposit Guaranty Nat. Bank v. Roper

https://www.courtlistener.com/opinion/110225/deposit-guaranty-nat-bank-v-roper/

https://www.courtlistener.com/api/rest/v3/clusters/110225/

1979-057

I write briefly to state what seems to me to be sufficient differences between this case and United States Parole Comm'n v. Geraghty, post, p. 388, to allow the appeal of the denial of class certification in this case, and to dismiss the attempted appeal of the same question in Geraghty as moot. If I were writing on a clean slate, I might well resolve both these cases against the respondents. But the Court today has not cleaned the slate or been successful in formulating any sound principles *341 to replace what seem to me to be the muddled and inconsistent ones of the past. Compare Sosna v. Iowa, 419 U.S. 393 (1975), with Franks v. Bowman Transportation Co., 424 U.S. 747 (1976); United Airlines, Inc. v. McDonald, 432 U.S. 385, 393 (1977), with Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 430 (1976); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 470, n. 15 (1978), with Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128 (1975); and now this case, with United States Parole Comm'n v. Geraghty. Article III, and this Court's precedents in Jacobs, supra, and Spangler, supra, require dismissal of the action in Geraghty because there is simply no individual interest remaining, no certified class or intervenors to supply that interest, and the action is not within that "narrow class of cases" that are "distinctly `capable of repetition, yet evading review.'" Gerstein v. Pugh, 420 U.S. 103, 110, n. 11 (1975). The facts in this case, in contrast, fit within the framework of the precedents permitting continuation of the action. The distinguishing feature here is that the defendant has made an unaccepted offer of tender in settlement of the individual putative representative's claim. The action is moot in the Art. III sense only if this Court adopts a rule that an individual seeking to proceed as a class representative is required to accept a tender of only his individual claims. So long as the court does not require such acceptance, the individual is required to prove his case and the requisite Art. III adversity continues. Acceptance need not be mandated under our precedents since the defendant has not offered all that has been requested in the complaint (i. e., relief for the class) and any other rule would give the defendant the practical power to make the denial of class certification questions unreviewable. Since adversity is in fact retained, and this set of facts fits within a "narrow class of cases" where a contrary rule would lead to the "reality" that "otherwise the issue would evade review," I think our precedents provide for the maintenance *342 of this action. Sosna, supra, at 402, n. 11; Gerstein, supra. Accordingly, I join in the opinion of the Court in this case and in MR. JUSTICE POWELL's dissent in Geraghty. MR.

I write briefly to state what seems to me to be sufficient differences between this case and United States Parole Comm'n v. Geraghty, post, p. 388, to allow the appeal of the denial of class certification in this case, and to dismiss the attempted appeal of the same question in Geraghty as moot. If I were writing on a clean slate, I might well resolve both these cases against the respondents. But the Court today has not cleaned the slate or been successful in formulating any sound principles *341 to replace what seem to me to be the muddled and inconsistent ones of the past. Compare with ; United Airlines, with Pasadena City Bd. of ; Coopers & with Indianapolis School ; and now this case, with United States Parole Comm'n v. Geraghty. Article III, and this Court's precedents in and require dismissal of the action in Geraghty because there is simply no individual interest remaining, no certified class or intervenors to supply that interest, and the action is not within that "narrow class of cases" that are "distinctly `capable of repetition, yet evading review.'" The facts in this case, in contrast, fit within the framework of the precedents permitting continuation of the action. The distinguishing feature here is that the defendant has made an unaccepted offer of tender in settlement of the individual putative representative's claim. The action is moot in the Art. III sense only if this Court adopts a rule that an individual seeking to proceed as a class representative is required to accept a tender of only his individual claims. So long as the court does not require such acceptance, the individual is required to prove his case and the requisite Art. III adversity continues. Acceptance need not be mandated under our precedents since the defendant has not offered all that has been requested in the complaint (i. e., relief for the class) and any other rule would give the defendant the practical power to make the denial of class certification questions unreviewable. Since adversity is in fact retained, and this set of facts fits within a "narrow class of cases" where a contrary rule would lead to the "reality" that "otherwise the issue would evade review," I think our precedents provide for the maintenance *342 of this action. Sosna, ; Accordingly, I join in the opinion of the Court in this case and in MR. JUSTICE POWELL's dissent in Geraghty. MR.

Justice Souter

majority

Rompilla v. Beard

https://www.courtlistener.com/opinion/799980/rompilla-v-beard/

https://www.courtlistener.com/api/rest/v3/clusters/799980/

2004-065

This case calls for specific application of the standard of reasonable competence required on the part of defense counsel by the Sixth Amendment. We hold that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial. I On the morning of January 14, 1988, James Scanlon was discovered dead in a bar he ran in Allentown, Pennsylvania, his body having been stabbed repeatedly and set on fire. Ronald Rompilla was indicted for the murder and related offenses, and the Commonwealth gave notice of intent to ask *378 for the death penalty. Two public defenders were assigned to the case. The jury at the guilt phase of trial found Rompilla guilty on all counts, and during the ensuing penalty phase, the prosecutor sought to prove three aggravating factors to justify a death sentence: that the murder was committed in the course of another felony; that the murder was committed by torture; and that Rompilla had a significant history of felony convictions indicating the use or threat of violence. See 42 Pa. Cons. Stat. §§ 9711(d)(6), (8), (9) (2002). The Commonwealth presented evidence on all three aggravators, and the jury found all proven. Rompilla's evidence in mitigation consisted of relatively brief testimony: five of his family members argued in effect for residual doubt, and beseeched the jury for mercy, saying that they believed Rompilla was innocent and a good man. Rompilla's 14-year-old son testified that he loved his father and would visit him in prison. The jury acknowledged this evidence to the point of finding, as two factors in mitigation, that Rompilla's son had testified on his behalf and that rehabilitation was possible. But the jurors assigned the greater weight to the aggravating factors, and sentenced Rompilla to death. The Supreme Court of Pennsylvania affirmed both conviction and sentence. Commonwealth v. Rompilla, 539 Pa. 499, 653 A.2d 626 (1995). In December 1995, with new lawyers, Rompilla filed claims under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541 et seq. (2004), including ineffective assistance by trial counsel in failing to present significant mitigating evidence about Rompilla's childhood, mental capacity and health, and alcoholism. The postconviction court found that trial counsel had done enough to investigate the possibilities of a mitigation case, and the Supreme Court of Pennsylvania affirmed the denial of relief. Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786 (1998). *379 Rompilla then petitioned for a writ of habeas corpus under 28 U.S. C. § 2254 in Federal District Court, raising claims that included inadequate representation. The District Court found that the State Supreme Court had unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), as to the penalty phase of the trial, and granted relief for ineffective assistance of counsel. The court found that in preparing the mitigation case the defense lawyers had failed to investigate "pretty obvious signs" that Rompilla had a troubled childhood and suffered from mental illness and alcoholism, and instead had relied unjustifiably on Rompilla's own description of an unexceptional background. Rompilla v. Horn, No. CIV.A.99-737 (ED Pa., July 11, 2000), App. 1307-1308. A divided Third Circuit panel reversed. Rompilla v. Horn, 355 F.3d 233 (2004). The majority found nothing unreasonable in the state court's application of Strickland, given defense counsel's efforts to uncover mitigation material, which included interviewing Rompilla and certain family members, as well as consultation with three mental health experts. Although the majority noted that the lawyers did not unearth the "useful information" to be found in Rompilla's "school, medical, police, and prison records," it thought the lawyers were justified in failing to hunt through these records when their other efforts gave no reason to believe the search would yield anything helpful. 355 F.3d, at 252. The panel thus distinguished Rompilla's case from Wiggins v. Smith, 539 U.S. 510 (2003). Whereas Wiggins's counsel failed to investigate adequately, to the point even of ignoring the leads their limited enquiry yielded, the Court of Appeals saw the Rompilla investigation as going far enough to leave counsel with reason for thinking further efforts would not be a wise use of the limited resources they had. But Judge Sloviter's dissent stressed that trial counsel's failure to obtain relevant records on Rompilla's background was owing to the lawyers' unreasonable reliance on *380 family members and medical experts to tell them what records might be useful. The Third Circuit denied rehearing en banc by a vote of 6 to 5. Rompilla v. Horn, 359 F.3d 310 (2004). We granted certiorari, 542 U.S. 966 (2004), and now reverse.[1] II Under 28 U.S. C. § 2254, Rompilla's entitlement to federal habeas relief turns on showing that the state court's resolution of his claim of ineffective assistance of counsel under Strickland v. Washington, supra, "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1). An "unreasonable application" occurs when a state court "`identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, supra, at 520 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000) (opinion of O'CONNOR, J.)). That is, "the state court's decision must have been [not only] incorrect or erroneous [but] objectively unreasonable." Wiggins v. Smith, supra, at 520-521 (quoting Williams v. Taylor, supra, at 409 (internal quotation marks omitted)). Ineffective assistance under Strickland is deficient performance by counsel resulting in prejudice, 466 U. S., at 687, with performance being measured against an "objective standard of reasonableness," id., at 688, "under prevailing professional norms," ibid.; Wiggins v. Smith, supra, at 521. This case, like some others recently, looks to norms of adequate investigation in preparing for the sentencing phase of a capital trial, when defense counsel's job is to counter the *381 State's evidence of aggravated culpability with evidence in mitigation. In judging the defense's investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to "counsel's perspective at the time" investigative decisions are made, 466 U. S., at 689, and by giving a "heavy measure of deference to counsel's judgments," id., at 691. A A standard of reasonableness applied as if one stood in counsel's shoes spawns few hard-edged rules, and the merits of a number of counsel's choices in this case are subject to fair debate. This is not a case in which defense counsel simply ignored their obligation to find mitigating evidence, and their workload as busy public defenders did not keep them from making a number of efforts, including interviews with Rompilla and some members of his family, and examinations of reports by three mental health experts who gave opinions at the guilt phase. None of the sources proved particularly helpful. Rompilla's own contributions to any mitigation case were minimal. Counsel found him uninterested in helping, as on their visit to his prison to go over a proposed mitigation strategy, when Rompilla told them he was "bored being here listening" and returned to his cell. App. 668. To questions about childhood and schooling, his answers indicated they had been normal, ibid., save for quitting school in the ninth grade, id., at 677. There were times when Rompilla was even actively obstructive by sending counsel off on false leads. Id., at 663-664. The lawyers also spoke with five members of Rompilla's family (his former wife, two brothers, a sister-in-law, and his son), id., at 494, and counsel testified that they developed a good relationship with the family in the course of their representation, id., at 669, 729. The state postconviction court found that counsel spoke to the relatives in a "detailed manner," attempting to unearth mitigating information, id., at 264, although the weight of this finding is qualified by the *382 lawyers' concession that "the overwhelming response from the family was that they didn't really feel as though they knew him all that well since he had spent the majority of his adult years and some of his childhood years in custody," id., at 495; see also id., at 669. Defense counsel also said that because the family was "coming from the position that [Rompilla] was innocent . . . they weren't looking for reasons for why he might have done this." Id., at 494. The third and final source tapped for mitigating material was the cadre of three mental health witnesses who were asked to look into Rompilla's mental state as of the time of the offense and his competency to stand trial. Id., at 473-474, 476. But their reports revealed "nothing useful" to Rompilla's case, id., at 1358, and the lawyers consequently did not go to any other historical source that might have cast light on Rompilla's mental condition. When new counsel entered the case to raise Rompilla's postconviction claims, however, they identified a number of likely avenues the trial lawyers could fruitfully have followed in building a mitigation case. School records are one example, which trial counsel never examined in spite of the professed unfamiliarity of the several family members with Rompilla's childhood, and despite counsel's knowledge that Rompilla left school after the ninth grade. Id., at 677. Other examples are records of Rompilla's juvenile and adult incarcerations, which counsel did not consult, although they were aware of their client's criminal record. And while counsel knew from police reports provided in pretrial discovery that Rompilla had been drinking heavily at the time of his offense, Lodging to App. 111-120 (hereinafter Lodging), and although one of the mental health experts reported that Rompilla's troubles with alcohol merited further investigation, App. 723-724, counsel did not look for evidence of a history of dependence on alcohol that might have extenuating significance. Before us, trial counsel and the Commonwealth respond to these unexplored possibilities by emphasizing this Court's *383 recognition that the duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste. See Wiggins v. Smith, 539 U. S., at 525 (further investigation excusable where counsel has evidence suggesting it would be fruitless); Strickland v. Washington, supra, at 699 (counsel could "reasonably surmise . . . that character and psychological evidence would be of little help"); Burger v. Kemp, 483 U.S. 776, 794 (1987) (limited investigation reasonable because all witnesses brought to counsel's attention provided predominantly harmful information). The Commonwealth argues that the information trial counsel gathered from Rompilla and the other sources gave them sound reason to think it would have been pointless to spend time and money on the additional investigation espoused by postconviction counsel, and we can say that there is room for debate about trial counsel's obligation to follow at least some of those potential lines of enquiry. There is no need to say more, however, for a further point is clear and dispositive: the lawyers were deficient in failing to examine the court file on Rompilla's prior conviction. B There is an obvious reason that the failure to examine Rompilla's prior conviction file fell below the level of reasonable performance. Counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving Rompilla's prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim's testimony given in that earlier trial. App. 665-666. There is no question that defense counsel were on notice, since they acknowledge that a "plea letter," written by one of them four days *384 prior to trial, mentioned the prosecutor's plans. Ibid. It is also undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried. It is clear, however, that defense counsel did not look at any part of that file, including the transcript, until warned by the prosecution a second time. In a colloquy the day before the evidentiary sentencing phase began, the prosecutor again said he would present the transcript of the victim's testimony to establish the prior conviction. "[DEFENSE]: I would also like to review whatever he's going to read from. "[PROSECUTOR]: Well, I told you that I was going to do this a long time ago. You certainly had the opportunity to review the Transcript. . . . . . "[DEFENSE]: Well, I would like a copy of this. "[PROSECUTOR]: I don't think that's my duty to provide you with a copy. That's a public record, and you could have gotten that Transcript at any time prior to this Trial. I made one copy for myself, and I'd like to have it now. "[DEFENSE]: Well, Judge, then I'm going to need to get a copy of it. I'm going to need to get a copy of it." Id., at 32, 36.[2] *385 At the postconviction evidentiary hearing, Rompilla's lawyer confirmed that she had not seen the transcript before the hearing in which this exchange took place, id., at 506-507, and crucially, even after obtaining the transcript of the victim's testimony on the eve of the sentencing hearing, counsel apparently examined none of the other material in the file.[3] With every effort to view the facts as a defense lawyer would have done at the time, it is difficult to see how counsel could have failed to realize that without examining the readily available file they were seriously compromising their opportunity to respond to a case for aggravation. The prosecution was going to use the dramatic facts of a similar prior offense, and Rompilla's counsel had a duty to make all reasonable efforts to learn what they could about the offense. Reasonable efforts certainly included obtaining the Commonwealth's own readily available file on the prior conviction to learn what the Commonwealth knew about the crime, to discover any mitigating evidence the Commonwealth would downplay, and to anticipate the details of the aggravating *386 evidence the Commonwealth would emphasize.[4] Without making reasonable efforts to review the file, defense counsel could have had no hope of knowing whether the prosecution was quoting selectively from the transcript, or whether there were circumstances extenuating the behavior described by the victim. The obligation to get the file was particularly pressing here owing to the similarity of the violent prior offense to the crime charged and Rompilla's sentencing strategy stressing residual doubt. Without making efforts to learn the details and rebut the relevance of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope.[5] *387 The notion that defense counsel must obtain information that the State has and will use against the defendant is not simply a matter of common sense. As the District Court points out, the American Bar Association Standards for Criminal Justice in circulation at the time of Rompilla's trial describes the obligation in terms no one could misunderstand in the circumstances of a case like this one: "It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.).[6] "[W]e long have referred [to these ABA Standards] as `guides to determining what is reasonable.'" Wiggins v. Smith, 539 U. S., at 524 (quoting Strickland v. Washington, 466 U. S., at 688), and the Commonwealth has come up with no reason to think the quoted standard impertinent here.[7] *388 At argument the most that Pennsylvania (and the United States as amicus) could say was that defense counsel's efforts to find mitigating evidence by other means excused them from looking at the prior conviction file. Tr. of Oral Arg. 37-39, 45-46. And that, of course, is the position taken by the state postconviction courts. Without specifically discussing the prior case file, they too found that defense counsel's *389 efforts were enough to free them from any obligation to enquire further. Commonwealth v. Rompilla, No. 682/1988 (Pa. Ct. Common Pleas, Aug. 23, 1996), App. 263-264, 272-273. We think this conclusion of the state court fails to answer the considerations we have set out, to the point of being an objectively unreasonable conclusion. It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the trial courthouse, open for the asking. No reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim's testimony. Nor would a reasonable lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and even plans to read from in his case. Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there. E. g., Strickland, supra, at 699. But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell defense counsel something about what the prosecution can produce. The dissent thinks this analysis creates a "rigid, per se" rule that requires defense counsel to do a complete review of the file on any prior conviction introduced, post, at 9 (opinion of KENNEDY, J.), but that is a mistake. Counsel fell short here because they failed to make reasonable efforts to review the prior conviction file, despite knowing that the prosecution intended to introduce Rompilla's prior conviction not merely by entering a notice of conviction into evidence but by quoting damaging testimony of the rape victim in that case. The unreasonableness of attempting no more than they did was heightened by the easy availability of the file *390 at the trial courthouse, and the great risk that testimony about a similar violent crime would hamstring counsel's chosen defense of residual doubt. It is owing to these circumstances that the state courts were objectively unreasonable in concluding that counsel could reasonably decline to make any effort to review the file. Other situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment. C Since counsel's failure to look at the file fell below the line of reasonable practice, there is a further question about prejudice, that is, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U. S., at 694. Because the state courts found the representation adequate, they never reached the issue of prejudice, App. 265, 272-273, and so we examine this element of the Strickland claim de novo, Wiggins v. Smith, 539 U. S., at 534, and agree with the dissent in the Court of Appeals. We think Rompilla has shown beyond any doubt that counsel's lapse was prejudicial; Pennsylvania, indeed, does not even contest the claim of prejudice. If the defense lawyers had looked in the file on Rompilla's prior conviction, it is uncontested they would have found a range of mitigation leads that no other source had opened up. In the same file with the transcript of the prior trial were the records of Rompilla's imprisonment on the earlier conviction, App. 508, 571, 631, which defense counsel testified she had never seen, id., at 508. The prison files pictured Rompilla's childhood and mental health very differently from anything defense counsel had seen or heard. An evaluation by a corrections counselor states that Rompilla was "reared in the slum environment of Allentown, Pa. vicinity. He early came to [the] attention of juvenile authorities, quit *391 school at 16, [and] started a series of incarcerations in and out Penna. often of assaultive nature and commonly related to over-indulgence in alcoholic beverages." Lodging 40. The same file discloses test results that the defense's mental health experts would have viewed as pointing to schizophrenia and other disorders, and test scores showing a third grade level of cognition after nine years of schooling. Id., at 32-35.[8] The accumulated entries would have destroyed the benign conception of Rompilla's upbringing and mental capacity defense counsel had formed from talking with Rompilla himself and some of his family members, and from the reports of the mental health experts. With this information, counsel would have become skeptical of the impression given by the five family members and would unquestionably have gone further to build a mitigation case. Further effort would presumably have unearthed much of the material post-conviction counsel found, including testimony from several members of Rompilla's family, whom trial counsel did not interview. Judge Sloviter summarized this evidence: "Rompilla's parents were both severe alcoholics who drank constantly. His mother drank during her pregnancy *392 with Rompilla, and he and his brothers eventually developed serious drinking problems. His father, who had a vicious temper, frequently beat Rompilla's mother, leaving her bruised and black-eyed, and bragged about his cheating on her. His parents fought violently, and on at least one occasion his mother stabbed his father. He was abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticks. All of the children lived in terror. There were no expressions of parental love, affection or approval. Instead, he was subjected to yelling and verbal abuse. His father locked Rompilla and his brother Richard in a small wire mesh dog pen that was filthy and excrement filled. He had an isolated background, and was not allowed to visit other children or to speak to anyone on the phone. They had no indoor plumbing in the house, he slept in the attic with no heat, and the children were not given clothes and attended school in rags." 355 F. 3d, at 279 (dissenting opinion) (citations omitted). The jury never heard any of this and neither did the mental health experts who examined Rompilla before trial. While they found "nothing helpful to [Rompilla's] case," Rompilla, 554 Pa., at 385, 721 A. 2d, at 790, their post-conviction counterparts, alerted by information from school, medical, and prison records that trial counsel never saw, found plenty of "`red flags'" pointing up a need to test further. 355 F. 3d, at 279 (Sloviter, J., dissenting). When they tested, they found that Rompilla "suffers from organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions." Ibid. They also said that "Rompilla's problems relate back to his childhood, and were likely caused by fetal alcohol syndrome [and that] Rompilla's capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the offense." Id., at 280 (Sloviter, J., dissenting). *393 These findings in turn would probably have prompted a look at school and juvenile records, all of them easy to get, showing, for example, that when Rompilla was 16 his mother "was missing from home frequently for a period of one or several weeks at a time." Lodging 44. The same report noted that his mother "has been reported . . . frequently under the influence of alcoholic beverages, with the result that the children have always been poorly kept and on the filthy side which was also the condition of the home at all times." Ibid. School records showed Rompilla's IQ was in the mentally retarded range. Id., at 11, 13, 15. This evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury, and although we suppose it is possible that a jury could have heard it all and still have decided on the death penalty, that is not the test. It goes without saying that the undiscovered "mitigating evidence, taken as a whole, `might well have influenced the jury's appraisal' of [Rompilla's] culpability," Wiggins v. Smith, 539 U. S., at 538 (quoting Williams v. Taylor, 529 U. S., at 398), and the likelihood of a different result if the evidence had gone in is "sufficient to undermine confidence in the outcome" actually reached at sentencing, Strickland, 466 U. S., at 694. The judgment of the Third Circuit is reversed, and Pennsylvania must either retry the case on penalty or stipulate to a life sentence. It is so ordered.

This case calls for specific application of the standard of reasonable competence required on the part of defense counsel by the Sixth Amendment. We hold that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial. I On the morning of January 14, 1988, James Scanlon was discovered dead in a bar he ran in Allentown, Pennsylvania, his body having been stabbed repeatedly and set on fire. Ronald was indicted for the murder and related offenses, and the Commonwealth gave notice of intent to ask *378 for the death penalty. Two public defenders were assigned to the case. The jury at the guilt phase of trial found guilty on all counts, and during the ensuing penalty phase, the prosecutor sought to prove three aggravating factors to justify a death sentence: that the murder was committed in the course of another felony; that the murder was committed by torture; and that had a significant history of felony convictions indicating the use or threat of violence. See (d)(6), (8), (9) (2002). The Commonwealth presented evidence on all three aggravators, and the jury found all proven. 's evidence in mitigation consisted of relatively brief testimony: five of his family members argued in effect for residual doubt, and beseeched the jury for mercy, saying that they believed was innocent and a good man. 's 14-year-old son testified that he loved his father and would visit him in prison. The jury acknowledged this evidence to the point of finding, as two factors in mitigation, that 's son had testified on his behalf and that rehabilitation was possible. But the jurors assigned the greater weight to the aggravating factors, and sentenced to death. The Supreme Court of Pennsylvania affirmed both conviction and sentence. In December with new lawyers, filed claims under the Pennsylvania Post Conviction Relief Act, et seq. including ineffective assistance by trial counsel in failing to present significant mitigating evidence about 's childhood, mental capacity and health, and alcoholism. The postconviction court found that trial counsel had done enough to investigate the possibilities of a mitigation case, and the Supreme Court of Pennsylvania affirmed the denial of relief. *379 then petitioned for a writ of habeas corpus under 28 U.S. C. 2254 in Federal District Court, raising claims that included inadequate representation. The District Court found that the State Supreme Court had unreasonably applied as to the penalty phase of the trial, and granted relief for ineffective assistance of counsel. The court found that in preparing the mitigation case the defense lawyers had failed to investigate "pretty obvious signs" that had a troubled childhood and suffered from mental illness and alcoholism, and instead had relied unjustifiably on 's own description of an unexceptional background. No. CIV.A.99-737 App. 1307-1308. A divided Third Circuit panel reversed. The majority found nothing unreasonable in the state court's application of given defense counsel's efforts to uncover mitigation material, which included interviewing and certain family members, as well as consultation with three mental health experts. Although the majority noted that the lawyers did not unearth the "useful information" to be found in 's "school, medical, police, and prison records," it thought the lawyers were justified in failing to hunt through these records when their other efforts gave no reason to believe the search would yield anything helpful. The panel thus distinguished 's case from Whereas Wiggins's counsel failed to investigate adequately, to the point even of ignoring the leads their limited enquiry yielded, the Court of Appeals saw the investigation as going far enough to leave counsel with reason for thinking further efforts would not be a wise use of the limited resources they had. But Judge Sloviter's dissent stressed that trial counsel's failure to obtain relevant records on 's background was owing to the lawyers' unreasonable reliance on *380 family members and medical experts to tell them what records might be useful. The Third Circuit denied rehearing en banc by a vote of 6 to 5. We granted certiorari, and now reverse.[1] II Under 28 U.S. C. 2254, 's entitlement to federal habeas relief turns on showing that the state court's resolution of his claim of ineffective assistance of counsel under "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 2254(d)(1). An "unreasonable application" occurs when a state court "`identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." ). That is, "the state court's decision must have been [not only] incorrect or erroneous [but] objectively unreasonable." -521 (quoting ). Ineffective assistance under is deficient performance by counsel resulting in with performance being measured against an "objective standard of reasonableness," "under prevailing professional norms," ibid.; This case, like some others recently, looks to norms of adequate investigation in preparing for the sentencing phase of a capital trial, when defense counsel's job is to counter the *381 State's evidence of aggravated culpability with evidence in mitigation. In judging the defense's investigation, as in applying generally, hindsight is discounted by pegging adequacy to "counsel's perspective at the time" investigative decisions are made, and by giving a "heavy measure of deference to counsel's judgments," A A standard of reasonableness applied as if one stood in counsel's shoes spawns few hard-edged rules, and the merits of a number of counsel's choices in this case are subject to fair debate. This is not a case in which defense counsel simply ignored their obligation to find mitigating evidence, and their workload as busy public defenders did not keep them from making a number of efforts, including interviews with and some members of his family, and examinations of reports by three mental health experts who gave opinions at the guilt phase. None of the sources proved particularly helpful. 's own contributions to any mitigation case were minimal. Counsel found him uninterested in helping, as on their visit to his prison to go over a proposed mitigation strategy, when told them he was "bored being here listening" and returned to his cell. App. 668. To questions about childhood and schooling, his answers indicated they had been normal, ib save for quitting school in the ninth grade, There were times when was even actively obstructive by sending counsel off on false leads. The lawyers also spoke with five members of 's family (his former wife, two brothers, a sister-in-law, and his son), and counsel testified that they developed a good relationship with the family in the course of their representation, The state postconviction court found that counsel spoke to the relatives in a "detailed manner," attempting to unearth mitigating information, although the weight of this finding is qualified by the *382 lawyers' concession that "the overwhelming response from the family was that they didn't really feel as though they knew him all that well since he had spent the majority of his adult years and some of his childhood years in custody," ; see also Defense counsel also said that because the family was "coming from the position that [] was innocent they weren't looking for reasons for why he might have done this." The third and final source tapped for mitigating material was the cadre of three mental health witnesses who were asked to look into 's mental state as of the time of the offense and his competency to stand trial. But their reports revealed "nothing useful" to 's case, and the lawyers consequently did not go to any other historical source that might have cast light on 's mental condition. When new counsel entered the case to raise 's postconviction claims, however, they identified a number of likely avenues the trial lawyers could fruitfully have followed in building a mitigation case. School records are one example, which trial counsel never examined in spite of the professed unfamiliarity of the several family members with 's childhood, and despite counsel's knowledge that left school after the ninth grade. Other examples are records of 's juvenile and adult incarcerations, which counsel did not consult, although they were aware of their client's criminal record. And while counsel knew from police reports provided in pretrial discovery that had been drinking heavily at the time of his offense, Lodging to App. 111-120 (hereinafter Lodging), and although one of the mental health experts reported that 's troubles with alcohol merited further investigation, App. 723-724, counsel did not look for evidence of a history of dependence on alcohol that might have extenuating significance. Before us, trial counsel and the Commonwealth respond to these unexplored possibilities by emphasizing this Court's *383 recognition that the duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste. See ; ; The Commonwealth argues that the information trial counsel gathered from and the other sources gave them sound reason to think it would have been pointless to spend time and money on the additional investigation espoused by postconviction counsel, and we can say that there is room for debate about trial counsel's obligation to follow at least some of those potential lines of enquiry. There is no need to say more, however, for a further point is clear and dispositive: the lawyers were deficient in failing to examine the court file on 's prior conviction. B There is an obvious reason that the failure to examine 's prior conviction file fell below the level of reasonable performance. Counsel knew that the Commonwealth intended to seek the death penalty by proving had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving 's prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim's testimony given in that earlier trial. App. 665-666. There is no question that defense counsel were on notice, since they acknowledge that a "plea letter," written by one of them four days *384 prior to trial, mentioned the prosecutor's plans. It is also undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where was to be tried. It is clear, however, that defense counsel did not look at any part of that file, including the transcript, until warned by the prosecution a second time. In a colloquy the day before the evidentiary sentencing phase began, the prosecutor again said he would present the transcript of the victim's testimony to establish the prior conviction. "[DEFENSE]: I would also like to review whatever he's going to read from. "[PROSECUTOR]: Well, I told you that I was going to do this a long time ago. You certainly had the opportunity to review the Transcript. "[DEFENSE]: Well, I would like a copy of this. "[PROSECUTOR]: I don't think that's my duty to provide you with a copy. That's a public record, and you could have gotten that Transcript at any time prior to this Trial. I made one copy for myself, and I'd like to have it now. "[DEFENSE]: Well, Judge, then I'm going to need to get a copy of it. I'm going to need to get a copy of it."[2] *385 At the postconviction evidentiary hearing, 's lawyer confirmed that she had not seen the transcript before the hearing in which this exchange took place, and crucially, even after obtaining the transcript of the victim's testimony on the eve of the sentencing hearing, counsel apparently examined none of the other material in the file.[3] With every effort to view the facts as a defense lawyer would have done at the time, it is difficult to see how counsel could have failed to realize that without examining the readily available file they were seriously compromising their opportunity to respond to a case for aggravation. The prosecution was going to use the dramatic facts of a similar prior offense, and 's counsel had a duty to make all reasonable efforts to learn what they could about the offense. Reasonable efforts certainly included obtaining the Commonwealth's own readily available file on the prior conviction to learn what the Commonwealth knew about the crime, to discover any mitigating evidence the Commonwealth would downplay, and to anticipate the details of the aggravating *386 evidence the Commonwealth would emphasize.[4] Without making reasonable efforts to review the file, defense counsel could have had no hope of knowing whether the prosecution was quoting selectively from the transcript, or whether there were circumstances extenuating the behavior described by the victim. The obligation to get the file was particularly pressing here owing to the similarity of the violent prior offense to the crime charged and 's sentencing strategy stressing residual doubt. Without making efforts to learn the details and rebut the relevance of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope.[5] *387 The notion that defense counsel must obtain information that the State has and will use against the defendant is not simply a matter of common sense. As the District Court points out, the American Bar Association Standards for Criminal Justice in circulation at the time of 's trial describes the obligation in terms no one could misunderstand in the circumstances of a case like this one: "It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.).[6] "[W]e long have referred [to these ABA Standards] as `guides to determining what is reasonable.'" (quoting 466 U. S., ), and the Commonwealth has come up with no reason to think the quoted standard impertinent here.[7] *388 At argument the most that Pennsylvania (and the United States as amicus) could say was that defense counsel's efforts to find mitigating evidence by other means excused them from looking at the prior conviction file. Tr. of Oral Arg. 37-39, 45-46. And that, of course, is the position taken by the state postconviction courts. Without specifically discussing the prior case file, they too found that defense counsel's *389 efforts were enough to free them from any obligation to enquire No. 682/1988 (Pa. Ct. Common Pleas, Aug. 23, 1996), App. 263-264, 272-273. We think this conclusion of the state court fails to answer the considerations we have set out, to the point of being an objectively unreasonable conclusion. It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the trial courthouse, open for the asking. No reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim's testimony. Nor would a reasonable lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and even plans to read from in his case. Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there. E. g., But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell defense counsel something about what the prosecution can produce. The dissent thinks this analysis creates a "rigid, per se" rule that requires defense counsel to do a complete review of the file on any prior conviction introduced, post, at 9 (opinion of KENNEDY, J.), but that is a mistake. Counsel fell short here because they failed to make reasonable efforts to review the prior conviction file, despite knowing that the prosecution intended to introduce 's prior conviction not merely by entering a notice of conviction into evidence but by quoting damaging testimony of the rape victim in that case. The unreasonableness of attempting no more than they did was heightened by the easy availability of the file *390 at the trial courthouse, and the great risk that testimony about a similar violent crime would hamstring counsel's chosen defense of residual doubt. It is owing to these circumstances that the state courts were objectively unreasonable in concluding that counsel could reasonably decline to make any effort to review the file. Other situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment. C Since counsel's failure to look at the file fell below the line of reasonable practice, there is a further question about that is, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Because the state courts found the representation adequate, they never reached the issue of App. 265, 272-273, and so we examine this element of the claim de novo, and agree with the dissent in the Court of Appeals. We think has shown beyond any doubt that counsel's lapse was prejudicial; Pennsylvania, indeed, does not even contest the claim of If the defense lawyers had looked in the file on 's prior conviction, it is uncontested they would have found a range of mitigation leads that no other source had opened up. In the same file with the transcript of the prior trial were the records of 's imprisonment on the earlier conviction, App. 508, 571, 631, which defense counsel testified she had never seen, The prison files pictured 's childhood and mental health very differently from anything defense counsel had seen or heard. An evaluation by a corrections counselor states that was "reared in the slum environment of Allentown, Pa. vicinity. He early came to [the] attention of juvenile authorities, quit *391 school at 16, [and] started a series of incarcerations in and out Penna. often of assaultive nature and commonly related to over-indulgence in alcoholic beverages." Lodging 40. The same file discloses test results that the defense's mental health experts would have viewed as pointing to schizophrenia and other disorders, and test scores showing a third grade level of cognition after nine years of schooling.[8] The accumulated entries would have destroyed the benign conception of 's upbringing and mental capacity defense counsel had formed from talking with himself and some of his family members, and from the reports of the mental health experts. With this information, counsel would have become skeptical of the impression given by the five family members and would unquestionably have gone further to build a mitigation case. Further effort would presumably have unearthed much of the material post-conviction counsel found, including testimony from several members of 's family, whom trial counsel did not interview. Judge Sloviter summarized this evidence: "'s parents were both severe alcoholics who drank constantly. His mother drank during her pregnancy *392 with and he and his brothers eventually developed serious drinking problems. His father, who had a vicious temper, frequently beat 's mother, leaving her bruised and black-eyed, and bragged about his cheating on her. His parents fought violently, and on at least one occasion his mother stabbed his father. He was abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticks. All of the children lived in terror. There were no expressions of parental love, affection or approval. Instead, he was subjected to yelling and verbal abuse. His father locked and his brother Richard in a small wire mesh dog pen that was filthy and excrement filled. He had an isolated background, and was not allowed to visit other children or to speak to anyone on the phone. They had no indoor plumbing in the house, he slept in the attic with no heat, and the children were not given clothes and attended school in rags." (citations omitted). The jury never heard any of this and neither did the mental health experts who examined before trial. While they found "nothing helpful to ['s] case," their post-conviction counterparts, alerted by information from school, medical, and prison records that trial counsel never saw, found plenty of "`red flags'" pointing up a need to test When they tested, they found that "suffers from organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions." They also said that "'s problems relate back to his childhood, and were likely caused by fetal alcohol syndrome [and that] 's capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the offense." *393 These findings in turn would probably have prompted a look at school and juvenile records, all of them easy to get, showing, for example, that when was 16 his mother "was missing from home frequently for a period of one or several weeks at a time." Lodging 44. The same report noted that his mother "has been reported frequently under the influence of alcoholic beverages, with the result that the children have always been poorly kept and on the filthy side which was also the condition of the home at all times." School records showed 's IQ was in the mentally retarded range. This evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury, and although we suppose it is possible that a jury could have heard it all and still have decided on the death penalty, that is not the test. It goes without saying that the undiscovered "mitigating evidence, taken as a whole, `might well have influenced the jury's appraisal' of ['s] culpability," (quoting ), and the likelihood of a different result if the evidence had gone in is "sufficient to undermine confidence in the outcome" actually reached at sentencing, The judgment of the Third Circuit is reversed, and Pennsylvania must either retry the case on penalty or stipulate to a life sentence. It is so ordered.

Justice Stevens

majority

Padilla v. Kentucky

https://www.courtlistener.com/opinion/1723/padilla-v-kentucky/

https://www.courtlistener.com/api/rest/v3/clusters/1723/

2009-034

Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.1 In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “ ‘did not have to worry about immigration status since he had been in the country so long.’ ” 253 S.W.3d 482, 483 (Ky. 2008). Padilla relied on his counsel’s erroneous ad vice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney. Assuming the truth of his allegations, the Supreme —————— 1 Padilla’s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under 8 U.S. C. §1227(a)(2)(B)(i). 2 PADILLA v. KENTUCKY Opinion of the Court Court of Kentucky denied Padilla postconviction relief without the benefit of an evidentiary hearing. The court held that the Sixth Amendment’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a “collateral” consequence of his conviction. Id., at 485. In its view, neither counsel’s failure to advise peti tioner about the possibility of removal, nor counsel’s incor rect advice, could provide a basis for relief. We granted certiorari, 555 U. S. ___ (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his con viction for drug distribution made him subject to auto matic deportation. Whether he is entitled to relief de pends on whether he has been prejudiced, a matter that we do not address. I The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deporta tion, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal, Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes. The Nation’s first 100 years was “a period of unimpeded immigration.” C. Gordon & H. Rosenfield, Immigration Law and Procedure §1.(2)(a), p. 5 (1959). An early effort to empower the President to order the deportation of those Cite as: 559 U. S. ____ (2010) 3 Opinion of the Court immigrants he “judge[d] dangerous to the peace and safety of the United States,” Act of June 25, 1798, ch. 58, 1 Stat. 571, was short lived and unpopular. Gordon §1.2, at 5. It was not until 1875 that Congress first passed a statute barring convicts and prostitutes from entering the coun try, Act of Mar. 3, 1875, ch. 141, 18 Stat. 477. Gordon §1.2b, at 6. In 1891, Congress added to the list of exclud able persons those “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084.2 The Immigration and Nationality Act of 1917 (1917 Act) brought “radical changes” to our law. S. Rep. No. 1515, 81st Cong., 2d Sess., pp. 54–55 (1950). For the first time in our history, Congress made classes of noncitizens de portable based on conduct committed on American soil. Id., at 55. Section 19 of the 1917 Act authorized the de portation of “any alien who is hereafter sentenced to im prisonment for a term of one year or more because of conviction in this country of a crime involving moral turpi tude, committed within five years after the entry of the alien to the United States . . . .” 39 Stat. 889. And §19 also rendered deportable noncitizen recidivists who com mit two or more crimes of moral turpitude at any time after entry. Ibid. Congress did not, however, define the term “moral turpitude.” While the 1917 Act was “radical” because it authorized deportation as a consequence of certain convictions, the Act also included a critically important procedural protec tion to minimize the risk of unjust deportation: At the time of sentencing or within 30 days thereafter, the sen tencing judge in both state and federal prosecutions had the power to make a recommendation “that such alien —————— 2 In 1907, Congress expanded the class of excluded persons to include individuals who “admit” to having committed a crime of moral turpi tude. Act of Feb. 20, 1907, ch. 1134, 34 Stat. 899. 4 PADILLA v. KENTUCKY Opinion of the Court shall not be deported.” Id., at 890.3 This procedure, known as a judicial recommendation against deportation, or JRAD, had the effect of binding the Executive to pre vent deportation; the statute was “consistently . . . inter preted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disre garded as a basis for deportation,” Janvier v. United States, 793 F.2d 449, 452 (CA2 1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable of fenses expanded, judges retained discretion to ameliorate unjust results on a case-by-case basis. Although narcotics offenses—such as the offense at issue in this case—provided a distinct basis for deporta tion as early as 1922,4 the JRAD procedure was generally —————— 3 Asenacted, the statute provided: “That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, . . . make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this Act.” 1917 Act, 39 Stat. 889–890. This provision was codified in 8 U.S. C. §1251(b) (1994 ed.) (transferred to §1227 (2006 ed. )). The judge’s nondeportation recommendation was binding on the Secretary of Labor and, later, the Attorney General after control of immigration removal matters was transferred from the former to the latter. See Janvier v. United States, 793 F.2d 449, 452 (CA2 1986). 4 Congress first identified narcotics offenses as a special category of crimes triggering deportation in the 1922 Narcotic Drug Act. Act of May 26, 1922, ch. 202, 42 Stat. 596. After the 1922 Act took effect, there was some initial confusion over whether a narcotics offense also had to be a crime of moral turpitude for an individual to be deportable. See Weedin v. Moy Fat, 8 F.2d 488, 489 (CA9 1925) (holding that an individual who committed narcotics offense was not deportable because offense did not involve moral turpitude). However, lower courts even tually agreed that the narcotics offense provision was “special,” Chung Cite as: 559 U. S. ____ (2010) 5 Opinion of the Court available to avoid deportation in narcotics convictions. See United States v. O’Rourke, 213 F.2d 759, 762 (CA8 1954). Except for “technical, inadvertent and insignificant violations of the laws relating to narcotics,” ibid., it ap pears that courts treated narcotics offenses as crimes involving moral turpitude for purposes of the 1917 Act’s broad JRAD provision. See ibid. (recognizing that until 1952 a JRAD in a narcotics case “was effective to prevent deportation” (citing Dang Nam v. Bryan, 74 F.2d 379, 380–381 (CA9 1934))). In light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. Wash ington, 466 U.S. 668 (1984), the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, see Janvier, 793 F.2d 449. See also United States v. Castro, 26 F.3d 557 (CA5 1994). In its view, seeking a JRAD was “part of the sentencing” process, Janvier, 793 F.2d, at 452, even if deportation itself is a civil action. Under the Sec ond Circuit’s reasoning, the impact of a conviction on a noncitizen’s ability to remain in the country was a central issue to be resolved during the sentencing process—not merely a collateral matter outside the scope of counsel’s duty to provide effective representation. However, the JRAD procedure is no longer part of our law. Congress first circumscribed the JRAD provision in the 1952 Immigration and Nationality Act (INA),5 and in —————— Que Fong v. Nagle, 15 F.2d 789, 790 (CA9 1926); thus, a narcotics offense did not need also to be a crime of moral turpitude (or to satisfy other requirements of the 1917 Act) to trigger deportation. See United States ex rel. Grimaldi v. Ebey, 12 F.2d 922, 923 (CA7 1926); Todaro v. Munster, 62 F.2d 963, 964 (CA10 1933). 5 The Act separately codified the moral turpitude offense provision and the narcotics offense provision within 8 U.S. C. §1251(a) (1994 ed.) under subsections (a)(4) and (a)(11), respectively. See 66 Stat. 201, 204, 6 PADILLA v. KENTUCKY Opinion of the Court 1990 Congress entirely eliminated it, 104 Stat. 5050. In 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation, 110 Stat. 3009–596, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996, INS v. St. Cyr, 533 U.S. 289, 296 (2001). Under contemporary law, if a non citizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practi cally inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.6 See 8 U.S. C. §1229b. Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance. See §1101(a)(43)(B); §1228. These changes to our immigration law have dramati cally raised the stakes of a noncitizen’s criminal convic tion. The importance of accurate legal advice for nonciti zens accused of crimes has never been more important. These changes confirm our view that, as a matter of fed eral law, deportation is an integral part—indeed, some times the most important part 7—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. —————— 206. The JRAD procedure, codified in 8 U.S. C. §1251(b) (1994 ed.), applied only to the “provisions of subsection (a)(4),” the crimes-of-moral turpitude provision. 66 Stat. 208; see United States v. O’Rourke, 213 F.2d 759, 762 (CA8 1954) (recognizing that, under the 1952 Act, narcotics offenses were no longer eligible for JRADs). 6 The changes to our immigration law have also involved a change in nomenclature; the statutory text now uses the term “removal” rather than “deportation.” See Calcano-Martinez v. INS, 533 U.S. 348, 350, n. 1 (2001). 7 See Brief for Asian American Justice Center et al. as Amici Curiae 12–27 (providing real-world examples). Cite as: 559 U. S. ____ (2010) 7 Opinion of the Court II Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson, 397 U.S. 759, 771 (1970); Strick land, 466 U.S., at 686. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation con cerned only collateral matters, i.e., those matters not within the sentencing authority of the state trial court.8 253 S.W.3d, at 483–484 (citing Commonwealth v. Fuar tado, 170 S.W.3d 384 (2005)). In its view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S.W.3d, at 483. The Kentucky high court is far from alone in this view.9 —————— 8 There is some disagreement among the courts over how to distin guish between direct and collateral consequences. See Roberts, Igno rance is Effectively Bliss: Collateral Consequences, Silence, and Misin formation in the Guilty-Plea Process, 95 Iowa L. Rev. 119, 124, n. 15 (2009). The disagreement over how to apply the direct/collateral distinction has no bearing on the disposition of this case because, as even JUSTICE ALITO agrees, counsel must, at the very least, advise a noncitizen “defendant that a criminal conviction may have adverse immigration consequences,” post, at 1 (opinion concurring in judgment). See also post, at 14 (“I do not mean to suggest that the Sixth Amend ment does no more than require defense counsel to avoid misinforma tion”). In his concurring opinion, JUSTICE ALITO has thus departed from the strict rule applied by the Supreme Court of Kentucky and in the two federal cases that he cites, post, at 2. 9 See, e.g., United States v. Gonzalez, 202 F.3d 20 (CA1 2000); United States v. Del Rosario, 902 F.2d 55 (CADC 1990); United States v. Yearwood, 863 F.2d 6 (CA4 1988); Santos-Sanchez v. United States, 548 F.3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F.3d 1251 (CA10 2004); United States v. Campbell, 778 F.2d 764 (CA11 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183 8 PADILLA v. KENTUCKY Opinion of the Court We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U.S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation. We have long recognized that deportation is a particu larly severe “penalty,” Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F.2d 35, 38 (CADC 1982). Moreover, we are quite confident that noncitizen defen dants facing a risk of deportation for a particular offense find it even more difficult. See St. Cyr, 533 U.S., at 322 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration conse quences of their convictions”). Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collat eral consequence. The collateral versus direct distinction —————— Ariz. 421, 904 P.2d 1245 (App. 1995); State v. Montalban, 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92 (1989). Cite as: 559 U. S. ____ (2010) 9 Opinion of the Court is thus ill-suited to evaluating a Strickland claim concern ing the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim. III Under Strickland, we first determine whether counsel’s representation “fell below an objective standard of reason ableness.” 466 U.S., at 688. Then we ask whether “there is a reasonable probability that, but for counsel’s unpro fessional errors, the result of the proceeding would have been different.” Id., at 694. The first prong—constitu tional deficiency—is necessarily linked to the practice and expectations of the legal community: “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., at 688. We long have recognized that “[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable . . . .” Ibid.; Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 3); Florida v. Nixon, 543 U.S. 175, 191, and n. 6 (2004); Wiggins v. Smith, 539 U.S. 510, 524 (2003); Williams v. Taylor, 529 U.S. 362, 396 (2000). Although they are “only guides,” Strickland, 466 U.S., at 688, and not “inexorable commands,” Bobby, 558 U. S., at ___ (slip op., at 5), these standards may be valuable meas ures of the prevailing professional norms of effective rep resentation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representa tion §6.2 (1995); G. Herman, Plea Bargaining §3.03, 10 PADILLA v. KENTUCKY Opinion of the Court pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentenc ing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Stan dards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999). “[A]uthorities of every stripe— including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients . . . .” Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors as Amici Curiae 12–14 (footnotes omitted) (citing, inter alia, National Legal Aid and Defender Assn., Guidelines, supra, §§6.2–6.4 (1997); S. Bratton & E. Kelley, Practice Points: Representing a Noncitizen in a Criminal Case, 31 The Champion 61 (Jan./Feb. 2007); N. Tooby, Criminal Defense of Immigrants §1.3 (3d ed. 2003); 2 Criminal Practice Manual §§45:3, 45:15 (2009)). We too have previously recognized that “ ‘[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sen tence.’ ” St. Cyr, 533 U.S., at 323 (quoting 3 Criminal Defense Techniques §§60A.01, 60A.02[2] (1999)). Like wise, we have recognized that “preserving the possibility of” discretionary relief from deportation under §212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” St. Cyr, 533 U.S., at 323. We Cite as: 559 U. S. ____ (2010) 11 Opinion of the Court expected that counsel who were unaware of the discre tionary relief measures would “follo[w] the advice of nu merous practice guides” to advise themselves of the impor tance of this particular form of discretionary relief. Ibid., n. 50. In the instant case, the terms of the relevant immigra tion statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U.S. C. §1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of (or a con spiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . , other than a single offense in volving possession for one’s own use of 30 grams or less of marijuana, is deportable”). Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled sub stances convictions except for the most trivial of mari juana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively man datory, and his counsel’s advice was incorrect. Immigration law can be complex, and it is a legal spe cialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not suc cinct and straightforward (as it is in many of the scenarios 12 PADILLA v. KENTUCKY Opinion of the Court posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pend ing criminal charges may carry a risk of adverse immigra tion consequences.10 But when the deportation conse quence is truly clear, as it was in this case, the duty to give correct advice is equally clear. Accepting his allegations as true, Padilla has suffi ciently alleged constitutional deficiency to satisfy the first prong of Strickland. Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strick land’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance. IV The Solicitor General has urged us to conclude that Strickland applies to Padilla’s claim only to the extent that he has alleged affirmative misadvice. In the United States’ view, “counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case . . . ,” though counsel is required to provide accurate advice if she chooses to discusses these matters. Brief for United States as Amicus Curiae 10. Respondent and Padilla both find the Solicitor General’s proposed rule unpersuasive, although it has support among the lower courts. See, e.g., United States v. Couto, 311 F.3d 179, 188 (CA2 2002); United States v. Kwan, 407 F.3d 1005 (CA9 2005); Sparks v. Sowders, 852 F.2d 882 (CA6 1988); United States v. Russell, 686 F.2d 35 (CADC 1982); State v. Rojas-Martinez, 2005 UT 86, 125 P.3d 930, 935; In re Resendiz, 25 Cal. 4th 230, 19 P.3d 1171 (2001). Kentucky describes these decisions isolating an affirma tive misadvice claim as “result-driven, incestuous . . . —————— 10 AsJUSTICE ALITO explains at length, deportation consequences are often unclear. Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel’s advice. Cite as: 559 U. S. ____ (2010) 13 Opinion of the Court [,and] completely lacking in legal or rational bases.” Brief for Respondent 31. We do not share that view, but we agree that there is no relevant difference “between an act of commission and an act of omission” in this context. Id., at 30; Strickland, 466 U.S., at 690 (“The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”); see also State v. Paredez, 2004–NMSC–036, 136 N. M. 533, 538–539. A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incen tive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement.” Libretti v. United States, 516 U.S. 29, 50–51 (1995). When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.11 Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so “clearly satisfies the first prong of the Strickland analy sis.” Hill v. Lockhart, 474 U.S. 52, 62 (1985) (White, J., —————— 11 As the Commonwealth conceded at oral argument, were a defen dant’s lawyer to know that a particular offense would result in the client’s deportation and that, upon deportation, the client and his family might well be killed due to circumstances in the client’s home country, any decent attorney would inform the client of the conse quences of his plea. Tr. of Oral Arg. 37–38. We think the same result should follow when the stakes are not life and death but merely “ban ishment or exile,” Delgadillo v. Carmichael, 332 U.S. 388, 390–391 (1947). 14 PADILLA v. KENTUCKY Opinion of the Court concurring in judgment). We have given serious consideration to the concerns that the Solicitor General, respondent, and amici have stressed regarding the importance of protecting the final ity of convictions obtained through guilty pleas. We con fronted a similar “floodgates” concern in Hill, see id., at 58, but nevertheless applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.12 A flood did not follow in that decision’s wake. Sur mounting Strickland’s high bar is never an easy task. See, e.g., 466 U.S., at 689 (“Judicial scrutiny of counsel’s performance must be highly deferential”); id., at 693 (observing that “[a]ttorney errors . . . are as likely to be utterly harmless in a particular case as they are to be prejudicial”). Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000). There is no reason to doubt that lower courts—now quite experienced with applying Strick land—can effectively and efficiently use its framework to —————— 12 However, we concluded that, even though Strickland applied to petitioner’s claim, he had not sufficiently alleged prejudice to satisfy Strickland’s second prong. Hill, 474 U.S., at 59–60. This disposition further underscores the fact that it is often quite difficult for petitioners who have acknowledged their guilt to satisfy Strickland’s prejudice prong. JUSTICE ALITO believes that the Court misreads Hill, post, at 10–11. In Hill, the Court recognized—for the first time—that Strickland applies to advice respecting a guilty plea. 474 U.S., at 58 (“We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”). It is true that Hill does not control the question before us. But its import is nevertheless clear. Whether Strickland applies to Padilla’s claim follows from Hill, regardless of the fact that the Hill Court did not resolve the particular question respecting misadvice that was before it. Cite as: 559 U. S. ____ (2010) 15 Opinion of the Court separate specious claims from those with substantial merit. It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation conse quences of a client’s plea. See, supra, at 11–13. We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty. Strickland, 466 U.S., at 689. Likewise, although we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas, in the 25 years since we first applied Strick land to claims of ineffective assistance at the plea stage, practice has shown that pleas are less frequently the subject of collateral challenges than convictions obtained after a trial. Pleas account for nearly 95% of all criminal convictions.13 But they account for only approximately 30% of the habeas petitions filed.14 The nature of relief secured by a successful collateral challenge to a guilty plea—an opportunity to withdraw the plea and proceed to trial—imposes its own significant limiting principle: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a dif ferent calculus informs whether it is wise to challenge a —————— 13 See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2003, p. 418 (31st ed. 2005) (Table 5.17) (only approximately 5%, or 8,612 out of 68,533, of federal criminal prosecutions go to trial); id., at 450 (Table 5.46) (only approximately 5% of all state felony criminal prosecutions go to trial). 14 See V. Flango, National Center for State Courts, Habeas Corpus in State and Federal Courts 36–38 (1994) (demonstrating that 5% of defendants whose conviction was the result of a trial account for ap proximately 70% of the habeas petitions filed). 16 PADILLA v. KENTUCKY Opinion of the Court guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a convic tion obtained after a jury trial has no similar downside potential. Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deporta tion consequences into this process, the defense and prose cution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudi mentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill, 474 U.S., at 57; see also Richardson, 397 U.S., at 770–771. The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmi chael, 332 U.S. 388, 390–391 (1947)—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.15 —————— 15 To this end, we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration conse Cite as: 559 U. S. ____ (2010) 17 Opinion of the Court V It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U.S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. Taking as true the basis for his motion for postconvic tion relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitution ally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. See Verizon Communications Inc. v. FCC, 535 U.S. 467, 530 (2002). —————— quences. Ky. Admin. Office of Courts, Motion to Enter Guilty Plea, Form AOC–491 (Rev. 2/2003), http://courts.ky.gov/NR/rdonlyres/ 55E1F54E-ED5C-4A30-B1D5-4C43C7ADD63C/0/491.pdf (as visited Mar. 29, 2010, and available in Clerk of Court’s case file). Further, many States require trial courts to advise defendants of possible immigration consequences. See, e.g., Alaska Rule Crim. Proc. 11(c)(3)(C) (2009–2010); Cal. Penal Code Ann. §1016.5 (West 2008); Conn. Gen. Stat. §54–1j (2009); D. C. Code §16–713 (2001); Fla. Rule Crim. Proc. 3.172(c)(8) (Supp. 2010); Ga. Code Ann. §17–7–93(c) (1997); Haw. Rev. Stat. Ann. §802E–2 (2007); Iowa Rule Crim. Proc. 2.8(2)(b)(3) (Supp. 2009); Md. Rule 4–242 (Lexis 2009); Mass. Gen. Laws, ch. 278, §29D (2009); Minn. Rule Crim. Proc. 15.01 (2009); Mont. Code Ann. §46–12–210 (2009); N. M. Rule Crim. Form 9–406 (2009); N. Y. Crim. Proc. Law Ann. §220.50(7) (West Supp. 2009); N. C. Gen. Stat. Ann. §15A–1022 (Lexis 2007); Ohio Rev. Code Ann. §2943.031 (West 2006); Ore. Rev. Stat. §135.385 (2007); R. I. Gen. Laws §12–12–22 (Lexis Supp. 2008); Tex. Code. Ann. Crim. Proc., Art. 26.13(a)(4) (Vernon Supp. 2009); Vt. Stat. Ann., Tit. 13, §6565(c)(1) (Supp. 2009); Wash. Rev. Code §10.40.200 (2008); Wis. Stat. §971.08 (2005–2006). 18 PADILLA v. KENTUCKY Opinion of the Court The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 559 U. S. ____ (2010) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 08–651 _________________ JOSE PADILLA, PETITIONER v. KENTUCKY ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KENTUCKY [March 31, 2010] JUSTICE ALITO, with whom THE CHIEF JUSTICE joins, concurring in the judgment.

Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.1 n this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “ ‘did not have to worry about immigration status since he had been in the country so long.’ ” Padilla relied on his counsel’s erroneous ad vice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney. Assuming the truth of his allegations, the Supreme —————— 1 Padilla’s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under 8 U.S. C. 2 PADLLA v. KENTUCKY Opinion of the Court Court of Kentucky denied Padilla postconviction relief without the benefit of an evidentiary hearing. The court held that the Sixth Amendment’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a “collateral” consequence of his conviction. at 485. n its view, neither counsel’s failure to advise peti tioner about the possibility of removal, nor counsel’s incor rect advice, could provide a basis for relief. We granted certiorari, 555 U. S. (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his con viction for drug distribution made him subject to auto matic deportation. Whether he is entitled to relief de pends on whether he has been prejudiced, a matter that we do not address. The scape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deporta tion, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal, Fong Haw is now virtually inevitable for a vast number of noncitizens convicted of crimes. The Nation’s first 0 years was “a period of unimpeded immigration.” C. Gordon & H. Rosenfield, mmigration Law and Procedure p. 5 (1959). An early effort to empower the President to order the deportation of those Cite as: 559 U. S. (20) 3 Opinion of the Court immigrants he “judge[d] dangerous to the peace and safety of the United States,” Act of June 25, 1798, ch. 58, 1 Stat. 571, was short lived and unpopular. Gordon at 5. t was not until 1875 that Congress first passed a statute barring convicts and prostitutes from entering the coun try, Act of Mar. 3, 1875, ch. 141, Gordon at 6. n 1891, Congress added to the list of exclud able persons those “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Act of Mar. 3, 1891, ch. 551, 26 Stat. 84.2 The mmigration and Nationality Act of 1917 (1917 Act) brought “radical changes” to our law. S. Rep. No. 1515, 81st Cong., 2d Sess., pp. 54–55 (1950). For the first time in our history, Congress made classes of noncitizens de portable based on conduct committed on American soil. Section 19 of the 1917 Act authorized the de portation of “any alien who is hereafter sentenced to im prisonment for a term of one year or more because of conviction in this country of a crime involving moral turpi tude, committed within five years after the entry of the alien to the United States” And also rendered deportable noncitizen recidivists who com mit two or more crimes of moral turpitude at any time after entry. Congress did not, however, define the term “moral turpitude.” While the 1917 Act was “radical” because it authorized deportation as a consequence of certain convictions, the Act also included a critically important procedural protec tion to minimize the risk of unjust deportation: At the time of sentencing or within 30 days thereafter, the sen tencing judge in both state and federal prosecutions had the power to make a recommendation “that such alien —————— 2 n 1907, Congress expanded the class of excluded persons to include individuals who “admit” to having committed a crime of moral turpi tude. Act of Feb. 20, 1907, ch. 1134, 4 PADLLA v. KENTUCKY Opinion of the Court shall not be deported.”3 This procedure, known as a judicial recommendation against deportation, or JRAD, had the effect of binding the Executive to pre vent deportation; the statute was “consistently inter preted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disre garded as a basis for deportation,” Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable of fenses expanded, judges retained discretion to ameliorate unjust results on a case-by-case basis. Although narcotics offenses—such as the offense at issue in this case—provided a distinct basis for deporta tion as early as 1922,4 the JRAD procedure was generally —————— 3 Asenacted, the statute provided: “That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this Act.” 1917 Act, –890. This provision was codified in 8 U.S. C. ( ed.) (transferred to (2006 ed. )). The judge’s nondeportation recommendation was binding on the Secretary of Labor and, later, the Attorney General after control of immigration removal matters was transferred from the former to the latter. See 4 Congress first identified narcotics offenses as a special category of crimes triggering deportation in the 1922 Narcotic Drug Act. Act of May 26, 1922, ch. 202, After the 1922 Act took effect, there was some initial confusion over whether a narcotics offense also had to be a crime of moral turpitude for an individual to be deportable. See (holding that an individual who committed narcotics offense was not deportable because offense did not involve moral turpitude). However, lower courts even tually agreed that the narcotics offense provision was “special,” Chung Cite as: 559 U. S. (20) 5 Opinion of the Court available to avoid deportation in narcotics convictions. See United (CA8 1954). Except for “technical, inadvertent and insignificant violations of the laws relating to narcotics,” it ap pears that courts treated narcotics offenses as crimes involving moral turpitude for purposes of the 1917 Act’s broad JRAD provision. See (recognizing that until 1952 a JRAD in a narcotics case “was effective to prevent deportation” (citing Dang 0–1 (CA9 1934))). n light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, see See also United n its view, seeking a JRAD was “part of the sentencing” process, 793 F.2d, at even if deportation itself is a civil action. Under the Sec ond Circuit’s reasoning, the impact of a conviction on a noncitizen’s ability to remain in the country was a central issue to be resolved during the sentencing process—not merely a collateral matter outside the scope of counsel’s duty to provide effective representation. However, the JRAD procedure is no longer part of our law. Congress first circumscribed the JRAD provision in the 1952 mmigration and Nationality Act (NA),5 and in —————— Que ; thus, a narcotics offense did not need also to be a crime of moral turpitude (or to satisfy other requirements of the 1917 Act) to trigger deportation. See United States ex rel. ; Todaro v. Munster, 5 The Act separately codified the moral turpitude offense provision and the narcotics offense provision within 8 U.S. C. ( ed.) under subsections (a)(4) and (a)(11), respectively. See 204, 6 PADLLA v. KENTUCKY Opinion of the Court Congress entirely eliminated it, 4 Stat. 5050. n 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation, 1 Stat. 3009–596, an authority that had been exercised to prevent the deportation of over000 noncitizens during the 5-year period prior to 1996, NS v. St. 533 U.S. 289, 296 Under contemporary law, if a non citizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practi cally inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.6 See 8 U.S. C. Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance. See §11(a)(43)(B); These changes to our immigration law have dramati cally raised the stakes of a noncitizen’s criminal convic tion. The importance of accurate legal advice for nonciti zens accused of crimes has never been more important. These changes confirm our view that, as a matter of fed eral law, deportation is an integral part—indeed, some times the most important part 7—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. —————— 206. The JRAD procedure, codified in 8 U.S. C. ( ed.), applied only to the “provisions of subsection (a)(4),” the crimes-of-moral turpitude provision. ; see United 213 F.2d 759, (CA8 1954) (recognizing that, under the 1952 Act, narcotics offenses were no longer eligible for JRADs). 6 The changes to our immigration law have also involved a change in nomenclature; the statutory text now uses the term “removal” rather than “deportation.” See n. 1 7 See Brief for Asian American Justice Center et al. as Amici Curiae 12–27 (providing real-world examples). Cite as: 559 U. S. (20) 7 Opinion of the Court Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” ; Strick The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation con cerned only collateral matters, i.e., those matters not within the sentencing authority of the state trial court.8 253 S.W.3d, at –484 ). n its view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S.W.3d, at The Kentucky high court is far from alone in this view.9 —————— 8 There is some disagreement among the courts over how to distin guish between direct and collateral consequences. See Roberts, gno rance is Effectively Bliss: Collateral Consequences, Silence, and Misin formation in the Guilty-Plea Process, (2009). The disagreement over how to apply the direct/collateral distinction has no bearing on the disposition of this case because, as even JUSTCE ALTO agrees, counsel must, at the very least, advise a noncitizen “defendant that a criminal conviction may have adverse immigration consequences,” post, at 1 (opinion concurring in judgment). See also post, at 14 (“ do not mean to suggest that the Sixth Amend ment does no more than require defense counsel to avoid misinforma tion”). n his concurring opinion, JUSTCE ALTO has thus departed from the strict rule applied by the Supreme Court of Kentucky and in the two federal cases that he cites, post, at 2. 9 See, United ; United ; United States v. Yearwood, ; ; (CA 2004); United ; Oyekoya v. State, ; State v. Rosas, 183 8 PADLLA v. KENTUCKY Opinion of the Court We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strick, Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation. We have long recognized that deportation is a particu larly severe “penalty,” Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see 468 U.S. 32, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United Moreover, we are quite confident that noncitizen defen dants facing a risk of deportation for a particular offense find it even more difficult. See St. (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration conse quences of their convictions”). Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collat eral consequence. The collateral versus direct distinction —————— Ariz. 421, ; State v. Montalban, –2739 (La. 2/26/02), 8 So. 2d 16; Cite as: 559 U. S. (20) 9 Opinion of the Court is thus ill-suited to evaluating a Strick claim concern ing the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strick applies to Padilla’s claim. Under Strick, we first determine whether counsel’s representation “fell below an objective standard of reason ableness.” Then we ask whether “there is a reasonable probability that, but for counsel’s unpro fessional errors, the result of the proceeding would have been different.” The first prong—constitu tional deficiency—is necessarily linked to the practice and expectations of the legal community: “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” We long have recognized that “[p]revailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable” ; Bobby v. Van Hook, 558 U. S. (2009) (per curiam) (slip op., at 3); 191, and n. 6 (2004); 539 U.S. 5, (2003); Although they are “only guides,” Strick, 466 U.S., at 688, and not “inexorable commands,” Bobby, 558 U. S., at (slip op., at 5), these standards may be valuable meas ures of the prevailing professional norms of effective rep resentation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representa tion ; G. Herman, Plea Bargaining PADLLA v. KENTUCKY Opinion of the Court pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 ; A. Campbell, Law of Sentenc ing pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for ndigent Defense Systems, Standards for Attorney Performance, pp. D, H8–H9, J8 (providing survey of guidelines across multiple jurisdictions); ABA Stan dards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999). “[A]uthorities of every stripe— including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients” Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors as Amici Curiae 12–14 (footnotes omitted) (citing, inter alia, National Legal Aid and Defender Assn., Guidelines, §–6.4 (1997); S. Bratton & E. Kelley, Practice Points: Representing a Noncitizen in a Criminal Case, 31 The Champion 61 (Jan./Feb. 2007); N. Tooby, Criminal Defense of mmigrants (3d ed. 2003); 2 Criminal Practice Manual 45:15 (2009)). We too have previously recognized that “ ‘[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sen tence.’ ” St. (quoting 3 Criminal Defense Techniques 60A.02[2] (1999)). Like wise, we have recognized that “preserving the possibility of” discretionary relief from deportation under of the 1952 NA, repealed by Congress in 1996, “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” St. We Cite as: 559 U. S. (20) 11 Opinion of the Court expected that counsel who were unaware of the discre tionary relief measures would “follo[w] the advice of nu merous practice guides” to advise themselves of the impor tance of this particular form of discretionary relief. n. 50. n the instant case, the terms of the relevant immigra tion statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U.S. C. (a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of (or a con spiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance other than a single offense in volving possession for one’s own use of 30 grams or less of marijuana, is deportable”). Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled sub stances convictions except for the most trivial of mari juana possession offenses. nstead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively man datory, and his counsel’s advice was incorrect. mmigration law can be complex, and it is a legal spe cialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not suc cinct and straightforward (as it is in many of the scenarios 12 PADLLA v. KENTUCKY Opinion of the Court posited by JUSTCE ALTO), a criminal defense attorney need do no more than advise a noncitizen client that pend ing criminal charges may carry a risk of adverse immigra tion consequences. But when the deportation conse quence is truly clear, as it was in this case, the duty to give correct advice is equally clear. Accepting his allegations as true, Padilla has suffi ciently alleged constitutional deficiency to satisfy the first prong of Strick. Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strick ’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance. V The Solicitor General has urged us to conclude that Strick applies to Padilla’s claim only to the extent that he has alleged affirmative misadvice. n the United States’ view, “counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case” though counsel is required to provide accurate advice if she chooses to discusses these matters. Brief for United States as Amicus Curiae Respondent and Padilla both find the Solicitor General’s proposed rule unpersuasive, although it has support among the lower courts. See, United ; United States v. Kwan, 407 F.3d 05 ; ; United ; UT 86, 935; n re Resendiz, Kentucky describes these decisions isolating an affirma tive misadvice claim as “result-driven, incestuous —————— AsJUSTCE ALTO explains at length, deportation consequences are often unclear. Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel’s advice. Cite as: 559 U. S. (20) 13 Opinion of the Court [,and] completely lacking in legal or rational bases.” Brief for Respondent 31. We do not share that view, but we agree that there is no relevant difference “between an act of commission and an act of omission” in this context. at 30; Strick, (“The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”); see also State v. Paredez, 2004–NMSC–036, 136 N. M. 533, 5–539. A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incen tive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement.” When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.11 Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so “clearly satisfies the first prong of the Strick analy sis.” 14 PADLLA v. KENTUCKY Opinion of the Court concurring in judgment). We have given serious consideration to the concerns that the Solicitor General, respondent, and amici have stressed regarding the importance of protecting the final ity of convictions obtained through guilty pleas. We con fronted a similar “floodgates” concern in see at 58, but nevertheless applied Strick to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.12 A flood did not follow in that decision’s wake. Sur mounting Strick’s high bar is never an easy task. See, (“Judicial scrutiny of counsel’s performance must be highly deferential”); (observing that “[a]ttorney errors are as likely to be utterly harmless in a particular case as they are to be prejudicial”). Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 There is no reason to doubt that lower courts—now quite experienced with applying Strick —can effectively and efficiently use its framework to —————— 12 However, we concluded that, even though Strick applied to petitioner’s claim, he had not sufficiently alleged prejudice to satisfy Strick’s second prong. –60. This disposition further underscores the fact that it is often quite difficult for petitioners who have acknowledged their guilt to satisfy Strick’s prejudice prong. JUSTCE ALTO believes that the Court misreads post, at –11. n the Court recognized—for the first time—that Strick applies to advice respecting a guilty (“We hold, therefore, that the two-part Strick v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”). t is true that does not control the question before us. But its import is nevertheless clear. Whether Strick applies to Padilla’s claim follows from regardless of the fact that the Court did not resolve the particular question respecting misadvice that was before it. Cite as: 559 U. S. (20) 15 Opinion of the Court separate specious claims from those with substantial merit. t seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation conse quences of a client’s See, at 11–13. We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty. Strick, 466 U.S., at 689. Likewise, although we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas, in the 25 years since we first applied Strick to claims of ineffective assistance at the plea stage, practice has shown that pleas are less frequently the subject of collateral challenges than convictions obtained after a trial. Pleas account for nearly 95% of all criminal convictions.13 But they account for only approximately 30% of the habeas petitions filed.14 The nature of relief secured by a successful collateral challenge to a guilty plea—an opportunity to withdraw the plea and proceed to trial—imposes its own significant limiting principle: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the Thus, a dif ferent calculus informs whether it is wise to challenge a —————— 13 See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2003, p. 418 (Table 5.17) (only approximately 5%, or 8,612 out of 68,533, of federal criminal prosecutions go to trial); (only approximately 5% of all state felony criminal prosecutions go to trial). 14 See V. Flango, National Center for State Courts, Habeas Corpus in State and Federal Courts 36– (demonstrating that 5% of defendants whose conviction was the result of a trial account for ap proximately 70% of the habeas petitions filed). 16 PADLLA v. KENTUCKY Opinion of the Court guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a convic tion obtained after a jury trial has no similar downside potential. Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deporta tion consequences into this process, the defense and prose cution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudi mentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. n sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. ; see also Richardson, 397 U.S., at 770–. The severity of deportation—“the equivalent of banishment or exile,” 332 U.S. 8, —only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.15 —————— 15 To this end, we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration conse Cite as: 559 U. S. (20) 17 Opinion of the Court V t is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U.S., at To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. Taking as true the basis for his motion for postconvic tion relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitution ally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. See Verizon Communications nc. v. FCC, —————— quences. Ky. Admin. Office of Courts, Motion to Enter Guilty Plea, Form AOC–491 (Rev. 2/2003), http://courts.ky.gov/NR/rdonlyres/ 55E1F54E-ED5C-4A30-B1D5-4C43C7ADD63C/0/491.pdf (as visited Mar. 29, 20, and available in Clerk of Court’s case file). Further, many States require trial courts to advise defendants of possible immigration consequences. See, Alaska Rule Crim. Proc. 11(c)(3)(C) (2009–20); Cal. Penal Code Ann. §16.5 ; –1j (2009); D. C. Code ; Fla. Rule Crim. Proc. 3.172(c)(8) (Supp. 20); –7–93(c) (1997); Haw. Rev. Stat. Ann. (2007); owa Rule Crim. Proc. 2.8(2)(b)(3) (Supp. 2009); Md. Rule 4–242 (Lexis 2009); Mass. Gen. Laws, ch. 278, (2009); Minn. Rule Crim. Proc. 15.01 (2009); Mont. Code Ann. §46–12–2 (2009); N. M. Rule Crim. Form 9–406 (2009); N. Y. Crim. Proc. Law Ann. (West Supp. 2009); N. C. Gen. Stat. Ann. §15A–22 (Lexis 2007); (West 2006); Ore. Rev. Stat. §135.5 (2007); R. Gen. Laws ; Tex. Code. Ann. Crim. Proc., Art. 26.13(a)(4) (Vernon Supp. 2009); Vt. Stat. Ann., Tit. 13, (Supp. 2009); Wash. Rev. Code §.40.200 ; (–2006). 18 PADLLA v. KENTUCKY Opinion of the Court The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. t is so ordered. Cite as: 559 U. S. (20) 1 ALTO, J., concurring in judgment SUPREME COURT OF THE UNTED STATES No. 08–651 JOSE PADLLA, PETTONER v. KENTUCKY ON WRT OF CERTORAR TO THE SUPREME COURT OF KENTUCKY [March 31, 20] JUSTCE ALTO, with whom THE CHEF JUSTCE joins, concurring in the judgment.

Justice White

majority

Ely v. Klahr

https://www.courtlistener.com/opinion/108363/ely-v-klahr/

https://www.courtlistener.com/api/rest/v3/clusters/108363/

1970-124

This appeal is the latest step in the long and fitful attempt to devise a constitutionally valid reapportionment scheme for the State of Arizona. For the reasons given, we affirm the judgment of the District Court. In April 1964, shortly before this Court's decision in Reynolds v. Sims, 377 U.S. 533 (1964), and in its companion cases, suit was filed in the District Court for the District of Arizona attacking the then-existing state districting laws as unconstitutional.[1] Following those decisions, the three-judge District Court ordered all proceedings stayed "until the expiration of a period of 30 days next following adjournment of the next session" of the Arizona Legislature. (App. 2-3, unreported.) Nearly a year later, on May 18, 1965, after the legislature had failed to act, the court again deferred trial pending a special legislative session called by the Governor to deal with the necessity of reapportionment. The special session enacted Senate Bill 11, which among other things provided one senator for a county of 7,700 and another for a county of 55,000. The session did not undertake to reapportion the House. Trial was had in November 1965 and on February 2, 1966, the court enjoined enforcement of Senate Bill 11, which, it held, "bears evidence of having been thrown together as a result of considerations wholly apart from those laid down as compulsory by the *110 decisions of the Supreme Court." Klahr v. Goddard, 250 F. Supp. 537, 541 (Ariz. 1966). The plan, said the court, was "shot through with invidious discrimination." Id., at 546. The court also held that the existing House plan produced disparities of nearly four to one, which was clearly impermissible under our decisions. Noting that the legislature "has had ample opportunity" to produce a valid reapportionment plan, the court formulated its own plan as a "temporary and provisional reapportionment," designed to govern the impending preparation for the 1966 elections. The plan was to be in effect "for the 1966 primary and general elections and for such further elections as may follow until such time as the Legislature itself may adopt different and valid plans for districting and reapportionment."[2]Id., at 543. It retained jurisdiction, as it has done since. Some 16 months later, in June 1967, the Arizona Legislature enacted "Chapter 1, 28th Legislature," which again attempted reapportionment of the State. Within the month, suit was filed charging that this Act also was unconstitutional, but the court deferred action pending the outcome of a referendum[3] scheduled with the November 1968 election for the legislature and Congress. It ordered those elections to be held in accordance with its own 1966 plan, as supplemented. Klahr v. Williams, 289 F. Supp. 829 (Ariz. 1967). The legislative plan was approved by the voters in the referendum and signed into law by the Governor on January 17, 1969. A hearing on the plan was commenced the same day. The court concluded on July 22, 1969, that the plan, which *111 set up "election districts" based on population and "legislative" subdistricts based on voter registration, would allow deviations among the legislative subdistricts of up to 40% from ideal until 1971, and up to 16% thereafter. The court properly concluded that this plan was invalid under Kirkpatrick v. Preisler, 394 U.S. 526 (1969), and Wells v. Rockefeller, 394 U.S. 542 (1969), since the legislature had operated on the notion that a 16% deviation was de minimis and consequently made no effort to achieve greater equality. The court ordered its 1966 plan continued once again "until the Legislature shall have adopted different, valid, and effective plans for redistricting and reapportionment . . . ." (App. 85, unreported.) It refused to order the 1970 elections to be held at large, since there was "ample time" for the legislature "to meet its obligation" before the machinery for conducting the 1970 elections would be engaged. The legislature attempted a third time to enact a valid plan. It passed "Chapter 1, House Bill No. 1, 29th Legislature," which was signed into law by the Governor on January 22, 1970, and which is the plan involved in the decision from which this appeal is taken. Appellant challenged the bill, alleging that it "substantially disenfranchises, unreasonably and unnecessarily, a large number of the citizens of the state," App. 106, and "creates legislative districts that are grossly unequal." App. 108. Appellant at that time submitted his own plan for the court's consideration. Appellant's primary dispute with new plan was that it substantially misconceived the current population distribution in Arizona. The court agreed that appellant's plan, which utilized 1968 projections of 1960 and 1965 Arizona censuses, could "very likely [result in] a valid reapportionment plan" but it declined to implement the plan, since it was based on census tracts, rather than the existing precinct boundaries, and "the necessary reconstruction of the election *112 precincts could not be accomplished in time" to serve the 1970 election, whose preliminary preparations were to begin in a few weeks. Klahr v. Williams, 313 F. Supp. 148, 150 (Ariz. 1970). At the same time, the court observed that its 1966 plan had fallen behind contemporary constitutional requirements, due to more recent voter registration data (which increased the deviation between high and low districts to 47.09%) and the intervening decisions of this Court in Krikpatrick and Wells, supra, and Burns v. Richardson, 384 U.S. 73 (1966). Turning to the legislature's plan, the court found it wanting in several respects. First, though the result indicated population deviation between high and low districts of only 1.8%, the population formula used[4] did not "truly represent the population within [the] precincts in either 1960 or 1968," and thus "the figures produced. . . are not truly population figures." 313 F. Supp., at 152. Second, the computer that devised the plan had been programmed to assure that the plan would not require any incumbent legislator to face any other incumbent for re-election. Third, the programming gave priority to one-party districts over districts drawn without regard to party strength. The court held that "the incumbency factor has no place in any reapportionment or redistricting"[5] and found "inapposite" the *113 "consideration of party strength as a factor . . . ." Ibid. The court was thus faced with a situation where both its 1966 plan and the legislature's latest attempt fell short of the constitutional standard. At that time, however, the 1970 elections were "close at hand." The court concluded that another legislative effort was "out of the question" due to the time and felt that it could not itself devise a new plan without delaying primary elections, "a course which would involve serious risk of confusion and chaos." Ibid. It considered at-large elections, but the prospect of electing 90 legislators at large was deemed so repugnant as to be justified only if the legislature's actions had been "deliberate and inexcusable"; the court instead believed that the large population increase in Arizona since the last reliable census in 1960 was more to blame. Concluding that the 1970 elections would be the last to be held before the 1970 census data became available for new plans, the court chose what it considered the lesser of two evils and ordered the elections to be conducted under the legislature's plan. In its order to this effect, the court noted that it "assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment," but that "[u]pon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief." Id., at 154. The state officials did not seek review of the District Court's judgment declaring Chapter 1 unconstitutional. Appellant, however appealed to this Court. His notice of appeal was filed on June 18, 1970, his jurisdictional statement on August 17, 1970. The latter presented the single question whether it was error for the United States *114 District Court to refuse to enjoin the enforcement of the Arizona Legislature's most recent effort to reapportion the State. Appellees' motion to dismiss or affirm was filed on November 24. We noted probable jurisdiction on December 21, 400 U.S. 963. Meanwhile, the 1970 elections were held in accordance with the District Court's decree. Appellees suggest that the issue presented is moot and appellant concedes "the 1970 general election has already been held so that that aspect of the wrong cannot be remedied." Brief 8. But appellant now argues that however that may be, the District Court should now proceed to adopt a plan of reapportionment which would be displaced only upon the adoption of a valid plan by the legislature. Appellant doubts that postponing judicial action until after November 1 will give the District Court sufficient time, prior to June 1972, when the election process must begin in Arizona, to consider the legislative plan and to prepare its own plan if the legislative effort does not comply with the Constitution. The feared result is that another election under an unconstitutional plan would be held in Arizona. Reapportionment history in the State lends some substance to these fears, but as we have often noted, districting and apportionment are legislative tasks in the first instance,[6] and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971. We agree with appellant that the District Court should make very sure that the 1972 elections *115 are held under a constitutionally adequate apportionment plan. But the District Court knows better than we whether the November 1 deadline will afford it ample opportunity to assess the legality of a new apportionment statute if one is forthcoming and to prepare its own plan by June 1, 1972, if the official version proves insufficient. The 1970 census figures, if not now available, will be forthcoming soon; and appellant, if he is so inclined, can begin to assemble the necessary information and witnesses and himself prepare and have ready for submission what he deems to be an adequate apportionment plan. Surely, had a satisfactory substitute for Chapter 1, held unconstitutional by the District Court, been prepared and ready the court would have ordered the 1970 elections held under that plan rather than the invalid legislative scheme. And surely if appellant has ready for court use on November 1, 1971, a suitable alternative for an unacceptable legislative effort, or at least makes sure that the essential information is on hand, there is no justifiable ground for thinking the District Court could not, prior to June 1, 1972, complete its hearings and consideration of a new apportionment statute and, if that is rejected adopt a plan of its own for use in the 1972 elections. Nor do we read the District Court decree as forbidding appellant from petitioning for reopening of the case prior to November 1, 1971, and presenting to the District Court the problem which it has now raised here but which we prefer at this juncture to leave in the hands of the District Court.[7] The judgment is affirmed. It is so ordered. *116 MR. JUSTICE DOUGLAS, with whom MR.

This appeal is the latest step in the long and fitful attempt to devise a constitutionally valid reapportionment scheme for the State of Arizona. For the reasons given, we affirm the judgment of the District Court. In April 1964, shortly before this Court's decision in and in its companion cases, suit was filed in the District Court for the District of Arizona attacking the then-existing state districting laws as unconstitutional.[1] Following those decisions, the three-judge District Court ordered all proceedings stayed "until the expiration of a period of 30 days next following adjournment of the next session" of the Arizona Legislature. (App. 2-3, unreported.) Nearly a year later, on May 18, 1965, after the legislature had failed to act, the court again deferred trial pending a special legislative session called by the Governor to deal with the necessity of reapportionment. The special session enacted Senate Bill 11, which among other things provided one senator for a county of 7,700 and another for a county of 55,000. The session did not undertake to reapportion the House. Trial was had in November 1965 and on February 2, 1966, the court enjoined enforcement of Senate Bill 11, which, it held, "bears evidence of having been thrown together as a result of considerations wholly apart from those laid down as compulsory by the *110 decisions of the Supreme Court." The plan, said the court, was "shot through with invidious discrimination." The court also held that the existing House plan produced disparities of nearly four to one, which was clearly impermissible under our decisions. Noting that the legislature "has had ample opportunity" to produce a valid reapportionment plan, the court formulated its own plan as a "temporary and provisional reapportionment," designed to govern the impending preparation for the 1966 elections. The plan was to be in effect "for the 1966 primary and general elections and for such further elections as may follow until such time as the Legislature itself may adopt different and valid plans for districting and reapportionment."[2] at 543. It retained jurisdiction, as it has done since. Some 16 months later, in June 1967, the Arizona Legislature enacted "Chapter 1, 28th Legislature," which again attempted reapportionment of the State. Within the month, suit was filed charging that this Act also was unconstitutional, but the court deferred action pending the outcome of a referendum[3] scheduled with the November 1968 election for the legislature and Congress. It ordered those elections to be held in accordance with its own 1966 plan, as supplemented. The legislative plan was approved by the voters in the referendum and signed into law by the Governor on January 17, 1969. A hearing on the plan was commenced the same day. The court concluded on July 22, 1969, that the plan, which *111 set up "election districts" based on population and "legislative" subdistricts based on voter registration, would allow deviations among the legislative subdistricts of up to 40% from ideal until 1971, and up to 16% thereafter. The court properly concluded that this plan was invalid under and since the legislature had operated on the notion that a 16% deviation was de minimis and consequently made no effort to achieve greater equality. The court ordered its 1966 plan continued once again "until the Legislature shall have adopted different, valid, and effective plans for redistricting and reapportionment" (App. 85, unreported.) It refused to order the 1970 elections to be held at large, since there was "ample time" for the legislature "to meet its obligation" before the machinery for conducting the 1970 elections would be engaged. The legislature attempted a third time to enact a valid plan. It passed "Chapter 1, House Bill No. 1, 29th Legislature," which was signed into law by the Governor on January 22, 1970, and which is the plan involved in the decision from which this appeal is taken. Appellant challenged the bill, alleging that it "substantially disenfranchises, unreasonably and unnecessarily, a large number of the citizens of the state," App. 106, and "creates legislative districts that are grossly unequal." App. 108. Appellant at that time submitted his own plan for the court's consideration. Appellant's primary dispute with new plan was that it substantially misconceived the current population distribution in Arizona. The court agreed that appellant's plan, which utilized 1968 projections of 1960 and 1965 Arizona censuses, could "very likely [result in] a valid reapportionment plan" but it declined to implement the plan, since it was based on census tracts, rather than the existing precinct boundaries, and "the necessary reconstruction of the election *112 precincts could not be accomplished in time" to serve the 1970 election, whose preliminary preparations were to begin in a few weeks. At the same time, the court observed that its 1966 plan had fallen behind contemporary constitutional requirements, due to more recent voter registration data (which increased the deviation between high and low districts to 47.09%) and the intervening decisions of this Court in Krikpatrick and and Turning to the legislature's plan, the court found it wanting in several respects. First, though the result indicated population deviation between high and low districts of only 1.8%, the population formula used[4] did not "truly represent the population within [the] precincts in either 1960 or 1968," and thus "the figures produced. are not truly population figures." Second, the computer that devised the plan had been programmed to assure that the plan would not require any incumbent legislator to face any other incumbent for re-election. Third, the programming gave priority to one-party districts over districts drawn without regard to party strength. The court held that "the incumbency factor has no place in any reapportionment or redistricting"[5] and found "inapposite" the *113 "consideration of party strength as a factor" The court was thus faced with a situation where both its 1966 plan and the legislature's latest attempt fell short of the constitutional standard. At that time, however, the 1970 elections were "close at hand." The court concluded that another legislative effort was "out of the question" due to the time and felt that it could not itself devise a new plan without delaying primary elections, "a course which would involve serious risk of confusion and chaos." It considered at-large elections, but the prospect of electing 90 legislators at large was deemed so repugnant as to be justified only if the legislature's actions had been "deliberate and inexcusable"; the court instead believed that the large population increase in Arizona since the last reliable census in 1960 was more to blame. Concluding that the 1970 elections would be the last to be held before the 1970 census data became available for new plans, the court chose what it considered the lesser of two evils and ordered the elections to be conducted under the legislature's plan. In its order to this effect, the court noted that it "assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment," but that "[u]pon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief." The state officials did not seek review of the District Court's judgment declaring Chapter 1 unconstitutional. Appellant, however appealed to this Court. His notice of appeal was filed on June 18, 1970, his jurisdictional statement on August 17, 1970. The latter presented the single question whether it was error for the United States *114 District Court to refuse to enjoin the enforcement of the Arizona Legislature's most recent effort to reapportion the State. Appellees' motion to dismiss or affirm was filed on November 24. We noted probable jurisdiction on December 21, Meanwhile, the 1970 elections were held in accordance with the District Court's decree. Appellees suggest that the issue presented is moot and appellant concedes "the 1970 general election has already been held so that that aspect of the wrong cannot be remedied." Brief 8. But appellant now argues that however that may be, the District Court should now proceed to adopt a plan of reapportionment which would be displaced only upon the adoption of a valid plan by the legislature. Appellant doubts that postponing judicial action until after November 1 will give the District Court sufficient time, prior to June 1972, when the election process must begin in Arizona, to consider the legislative plan and to prepare its own plan if the legislative effort does not comply with the Constitution. The feared result is that another election under an unconstitutional plan would be held in Arizona. Reapportionment history in the State lends some substance to these fears, but as we have often noted, districting and apportionment are legislative tasks in the first instance,[6] and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971. We agree with appellant that the District Court should make very sure that the 1972 elections *115 are held under a constitutionally adequate apportionment plan. But the District Court knows better than we whether the November 1 deadline will afford it ample opportunity to assess the legality of a new apportionment statute if one is forthcoming and to prepare its own plan by June 1, 1972, if the official version proves insufficient. The 1970 census figures, if not now available, will be forthcoming soon; and appellant, if he is so inclined, can begin to assemble the necessary information and witnesses and himself prepare and have ready for submission what he deems to be an adequate apportionment plan. Surely, had a satisfactory substitute for Chapter 1, held unconstitutional by the District Court, been prepared and ready the court would have ordered the 1970 elections held under that plan rather than the invalid legislative scheme. And surely if appellant has ready for court use on November 1, 1971, a suitable alternative for an unacceptable legislative effort, or at least makes sure that the essential information is on hand, there is no justifiable ground for thinking the District Court could not, prior to June 1, 1972, complete its hearings and consideration of a new apportionment statute and, if that is rejected adopt a plan of its own for use in the 1972 elections. Nor do we read the District Court decree as forbidding appellant from petitioning for reopening of the case prior to November 1, 1971, and presenting to the District Court the problem which it has now raised here but which we prefer at this juncture to leave in the hands of the District Court.[7] The judgment is affirmed. It is so ordered. *116 MR. JUSTICE DOUGLAS, with whom MR.

Justice White

majority

Perez v. Campbell

https://www.courtlistener.com/opinion/108350/perez-v-campbell/

https://www.courtlistener.com/api/rest/v3/clusters/108350/

1970-115

This case raises an important issue concerning the construction of the Supremacy Clause of the Constitution— whether Ariz. Rev. Stat. Ann. § 28-1163 (B) (1956), which is part of Arizona's Motor Vehicle Safety Responsibility Act, is invalid under that clause as being in conflict with the mandate of § 17 of the Bankruptcy Act, 11 U.S. C. § 35, providing that receipt of a discharge in bankruptcy fully discharges all but certain specified judgments. The courts below, concluding that this case was controlled by Kesler v. Department of Public Safety, 369 U.S. 153 (1962), and Reitz v. Mealey, 314 U.S. 33 (1941), two earlier opinions of this Court dealing with alleged conflicts between the Bankruptcy Act and state financial responsibility laws, ruled against the claim of conflict and upheld the Arizona statute. On July 8, 1965, petitioner Adolfo Perez, driving a car registered in his name, was involved in an automobile accident in Tucson, Arizona. The Perez automobile was not covered by liability insurance at the time of the collision. The driver of the second car was the minor daughter of Leonard Pinkerton, and in September 1966 the Pinkertons sued Mr. and Mrs. Perez in state court for personal injuries and property damage sustained in the accident. On October 31, 1967, the petitioners confessed judgment in this suit, and a judgment order was entered against them on November 8, 1967, for $2,425.98 plus court costs. Mr. and Mrs. Perez each filed a voluntary petition in bankruptcy in Federal District Court on November 6, 1967. Each of them duly scheduled the judgment debt *639 to the Pinkertons. The District Court entered orders on July 8, 1968, discharging both Mr. and Mrs. Perez from all debts and claims provable against their estates, including the Pinkerton judgment. 11 U.S. C. § 35; Lewis v. Roberts, 267 U.S. 467 (1925). During the pendency of the bankruptcy proceedings, the provisions of the Arizona Motor Vehicle Safety Responsibility Act came into play. Although only one provision of the Arizona Act is relevant to the issue presented by this case, it is appropriate to describe the statutory scheme in some detail. The Arizona statute is based on the Uniform Motor Vehicle Safety Responsibility Act promulgated by the National Conference on Street and Highway Safety.[1] Articles 1 and 2 of the Act deal, respectively, with definitional matters and administration. The substantive provisions begin in Art. 3, which requires the posting of financial security by those involved in accidents. Section 28-1141 of that article requires suspension of licenses for unlawful failure to report accidents, and § 28-1142 (Supp. 1970-1971) provides that within 60 days of the receipt of an accident report the Superintendent of the Motor Vehicle Division of the Highway Department shall suspend the driver's license of the operator and the registration of the owner of a car involved in an accident "unless such operator or owner or both shall deposit security in a sum which is sufficient in the judgment of the superintendent to satisfy any judgment or judgments for damages resulting from the accident as may be recovered against the operator or owner." Under the same section, notice of such suspension and the amount of security required must be sent to the owner and operator not less than 10 days prior to the effective date of the suspension. This section does not apply if the owner or the operator carried liability *640 insurance or some other covering bond at the time of the accident, or if such individual had previously qualified as a self-insurer under § 28-1222. Other exceptions to the requirement that security be posted are stated in § 28-1143.[2] If none of these exceptions applies, the suspension continues until: (1) the person whose privileges were suspended deposits the security required under § 28-1142 (Supp. 1970-1971); (2) one year elapses from the date of the accident and the person whose privileges were suspended files proof with the Superintendent that no one has initiated an action for damages arising from the accident; (3) evidence is filed with the superintendent that a release from liability, an adjudication of nonliability, a confession of judgment, or some other written settlement agreement has been entered.[3] As far as the record in the instant case shows, *641 the provisions of Art. 3 were not invoked against petitioners, and the constitutional validity of these provisions is, of course, not before us for decision. Article 4 of the Arizona Act, which includes the only provision at issue here, deals with suspension of licenses and registrations for nonpayment of judgments. Interestingly, it is only when the judgment debtor in an automobile accident lawsuit—usually an owner-operator like Mr. Perez—fails to respond to a judgment entered against him that he must overcome two hurdles in order to regain his driving privileges. Section 28-1161, the first section of Art. 4, requires the state court clerk or judge, when a judgment[4] has remained unsatisfied for 60 days after entry, to forward a certified copy of the judgment to the superintendent.[5] This was done in the present case, and on March 13, 1968, Mr. and Mrs. Perez were served with notice that their drivers' licenses and registration were suspended pursuant to § 28-1162 (A).[6] Under other provisions of Art. 4, such suspension is to *642 continue until the judgment is paid,[7] and § 28-1163 (B) specifically provides that "[a] discharge in bankruptcy following the rendering of any such judgment shall not relieve the judgment debtor from any of the requirements of this article." In addition to requiring satisfaction of the judgment debt, § 28-1163 (A) provides that the license and registration "shall remain suspended and shall not be renewed, nor shall any license or registration be thereafter issued in the name of the person . . . until the person gives proof of financial responsibility" for a future period.[8] Again, the validity of this limited requirement that some drivers post evidence of financial responsibility for the future in order to regain driving privileges is not questioned here. Nor is the broader issue of whether a *643 State may require proof of financial responsibility as a precondition for granting driving privileges to anyone before us for decision. What is at issue here is the power of a State to include as part of this comprehensive enactment designed to secure compensation for automobile accident victims a section providing that a discharge in bankruptcy of the automobile accident tort judgment shall have no effect on the judgment debtor's obligation to repay the judgment creditor, at least insofar as such repayment may be enforced by the withholding of driving privileges by the State. It was that question, among others, which petitioners raised after suspension of their licenses and registration by filing a complaint in Federal District Court seeking declaratory and injunctive relief and requesting a three-judge court. They asserted several constitutional violations, and also alleged that § 28-1163 (B) was in direct conflict with the Bankruptcy Act and was thus violative of the Supremacy Clause of the Constitution.[9] In support of their complaint, Mr. and Mrs. Perez filed affidavits stating that the suspension of their licenses and registration worked both physical and financial hardship upon them and their children. The District Judge granted the petitioners leave to proceed in forma pauperis, but thereafter granted the respondents' motion to dismiss the complaint for failure to state a claim upon which relief could be granted, citing Kesler and Reitz.[10] The Court of Appeals affirmed, relying on *644 the same two decisions. 421 F.2d 619 (CA9 1970). We granted certiorari. 400 U.S. 818 (1970). I Deciding whether a state statute is in conflict with a federal statute and hence invalid under the Supremacy Clause is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict. In the present case, both statutes have been authoritatively construed. In Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), the Supreme Court of Arizona held that "[t]he Financial Responsibility Act has for its principal purpose the protection of the public using the highways from financial hardship which may result from the use of automobiles by financially irresponsible persons." 93 Ariz., at 280, 380 P. 2d, at 140. The Arizona court has consistently adhered to this construction of its legislation, see Camacho v. Gardner, 104 Ariz. 555, 558, 456 P.2d 925, 928 (1969); New York Underwriters Ins. Co. v. Superior Court, 104 Ariz. 544, 456 P.2d 914 (1969); Sandoval v. Chenoweth, 102 Ariz. 241, 243, 428 P.2d 98, 100 (1967); Farmer v. Killingsworth, 102 Ariz. 44, 47, 424 P.2d 172, 175 (1967); Hastings v. Thurston, 100 Ariz. 302, 306, 413 P.2d 767, 770 (1966); Jenkins v. Mayflower Ins. Exchange, 93 Ariz. 287, 290, 380 P.2d 145, 147 (1963), and we are bound by its rulings. See, e. g., General Trading Co. v. State Tax Comm'n, 322 U.S. 335, 337 (1944). Although the dissent seems unwilling to accept the Arizona Supreme Court's construction of the statute as expressive of the Act's primary purpose[11]*645 and indeed characterizes that construction as unfortunate, post, at 667, a reading of the provisions outlined above leaves the impression that the Arizona Court's *646 description of the statutory purpose is not only logical but persuasive. The sole emphasis in the Act is one of providing leverage for the collection of damages from *647 drivers who either admit that they are at fault or are adjudged negligent. The victim of another driver's carelessness, if he so desires, can exclude the superintendent entirely from the process of "deterring" a repetition of that driver's negligence.[12] Further, if an *648 accident is litigated and a special verdict that the defendant was negligent and the plaintiff contributorily negligent is entered, the result in Arizona, as in many other States, is that there is no liability for damages arising from the accident. Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (1968). Under the Safety Responsibility Act, the apparent result of such a judgment is that no consequences are visited upon either driver although both have been found to have driven carelessly. See Ariz. Rev. Stat. Ann. §§ 28-1143 (A) (4), 28-1144 (3). Moreover, there are no provisions requiring drivers proved to be careless to stay off the roads for a period of time. Nor are there provisions requiring drivers who have caused accidents to attend some kind of driver improvement course, a technique that is not unfamiliar in sentencing for traffic offenses. Turning to the federal statute, the construction of the Bankruptcy Act is similarly clear. This Court on numerous occasions has stated that "[o]ne of the primary purposes of the bankruptcy act" is to give debtors "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre&emul;xisting debt." Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). Accord, e. g., Harris v. Zion's Savings Bank & Trust Co., 317 U.S. 447, 451 (1943); Stellwagen v. Clum, 245 U.S. 605, 617 (1918); Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554-555 (1915). There can be no doubt, given Lewis v. Roberts, 267 U.S. 467 (1925), that Congress intended this "new opportunity" to include freedom from most kinds of pre-existing tort judgments. *649 II With the construction of both statutes clearly established, we proceed immediately to the constitutional question whether a state statute that protects judgment creditors from "financially irresponsible persons" is in conflict with a federal statute that gives discharged debtors a new start "unhampered by the pressure and discouragement of pre&emul;xisting debt." As early as Gibbons v. Ogden, 9 Wheat. 1 (1824), Chief Justice Marshall stated the governing principle—that "acts of the State Legislatures. . . [which] interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution," are invalid under the Supremacy Clause. Id., at 211 (emphasis added). Three decades ago MR. JUSTICE BLACK, after reviewing the precedents, wrote in a similar vein that, while "[t]his Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, ha[d] made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference[,] . . . [i]n the final analysis," our function is to determine whether a challenged state statute "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Since Hines the Court has frequently adhered to this articulation of the meaning of the Supremacy Clause. See, e. g., Nash v. Florida Industrial Comm'n, 389 U.S. 235, 240 (1967); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229 (1964); Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372 U.S. 714, 722 (1963) (dictum); Free v. Bland, 369 U.S. 663, 666 (1962); Hill v. Florida, 325 U.S. 538, 542-543 (1945); Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176 (1942). Indeed, in Florida Lime & *650 Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), a recent case in which the Court was closely divided, all nine Justices accepted the Hines test. Id., at 141 (opinion of the Court), 165 (dissenting opinion). Both Kesler[13] and Reitz, however, ignored this controlling principle. The Court in Kesler conceded that Utah's financial responsibility law left "the bankrupt to some extent burdened by the discharged debt," 369 U.S., at 171, made "it more probable that the debt will be paid despite the discharge," id., at 173, and thereby made "some inroad . . . on the consequences of bankruptcy. . . ." Id., at 171. Utah's statute, in short, frustrated Congress' policy of giving discharged debtors a new start. But the Kesler majority was not concerned by this frustration. In upholding the statute, the majority opinion did not look to the effect of the legislation but simply asserted that the statute was "not an Act for the Relief of Mulcted Creditors," id., at 174, and was "not designed to aid collection of debts but to enforce a policy against irresponsible driving . . . ." Id., at 169. The majority, that is, looked to the purpose of the state legislation and upheld it because the purpose was not to circumvent the Bankruptcy Act but to promote highway safety; those in dissent, however, were concerned that, whatever the purpose of the Utah Act, its "plain and inevitable effect . . . [was] to create a powerful weapon for collection of a debt from which [the] bankrupt [had] been released by federal law." Id., at 183. Such a result, they argued, left "the States free . . . to impair . . . an important and historic policy *651 of this Nation . . . embodied in its bankruptcy laws." Id., at 185. The opinion of the Court in Reitz was similarly concerned, not with the fact that New York's financial responsibility law frustrated the operation of the Bankruptcy Act, but with the purpose of the law, which was divined as the promotion of highway safety. As the Court said: "The penalty which § 94-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety." 314 U.S., at 37. The dissenting opinion written by MR. JUSTICE DOUGLAS for himself and three others noted that the New York legislation put "the bankrupt . . . at the creditor's mercy," with the results that "[i]n practical effect the bankrupt may be in as bad, or even worse, a position than if the state had made it possible for a creditor to attach his future wages" and that "[b]ankruptcy . . . [was not] the sanctuary for hapless debtors which Congress intended." Id., at 41. We can no longer adhere to the aberrational doctrine of Kesler and Reitz that state law may frustrate the operation of federal law as long as the state legislature in passing its law had some purpose in mind other than *652 one of frustration. Apart from the fact that it is at odds with the approach taken in nearly all our Supremacy Clause cases, such a doctrine would enable state legislatures to nullify nearly all unwanted federal legislation by simply publishing a legislative committee report articulating some state interest or policy—other than frustration of the federal objective—that would be tangentially furthered by the proposed state law. In view of the consequences, we certainly would not apply the Kesler doctrine in all Supremacy Clause cases. Although it is possible to argue that Kesler and Reitz are somehow confined to cases involving either bankruptcy or highway safety, analysis discloses no reason why the States should have broader power to nullify federal law in these fields than in others. Thus, we conclude that Kesler and Reitz can have no authoritative effect to the extent they are inconsistent with the controlling principle that any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause. Section 28-1163 (B) thus may not stand. III Even accepting the Supremacy Clause analysis of Kesler and Reitz—that is, looking to the purpose rather than the effect of state laws—those decisions are not dispositive of this case. Just as Kesler went a step beyond Reitz and broadened the holding of the earlier case, 369 U.S., at 184 (dissenting opinion), so in the present case the respondents asked the courts below and this Court to expand the holdings of the two previous cases. The distinction between Kesler and Reitz and this case lies in the State's expressed legislative purpose. Kesler and Reitz were aberrational in their treatment of this question as well. The majority opinions in both cases assumed, without citation of state court authority or any indication that such precedent was unavailable, *653 that the purpose of the state financial responsibility laws there under attack was not provision of relief to creditors but rather deterrence of irresponsible driving. The assumption was, in effect, that all state legislatures which had enacted provisions such as § 28-1163 (B) had concluded that an uninsured motorist about to embark in his car would be more careful on the road if he did not have available what the majority in Kesler cavalierly characterized as an "easy refuge in bankruptcy." 369 U.S., at 173.[14] Passing the question of whether the Court gave sufficient attention to binding state interpretations of state legislative purpose and conceding that it employed proper technique in divining as obvious from their face the aim of the state enactments, the present case raises doubts about whether the Court was correct even in its basic assumptions. The Arizona Supreme Court has declared that Arizona's Safety Responsibility Act "has for its principal purpose the protection *654 of the public . . . from financial hardship" resulting from involvement in traffic accidents with uninsured motorists unable to respond to a judgment. Schecter v. Killingsworth, 93 Ariz., at 280, 380 P.2d, at 140. The Court in Kesler was able to declare, although the source of support is unclear, that the Utah statute could be upheld because it was "not an Act for the Relief of Mulcted Creditors" or a statute "designed to aid collection of debts." 369 U.S., at 174, 169. But here the respondents urge us to uphold precisely the sort of statute that Kesler would have stricken down—one with a declared purpose to protect judgment creditors "from financial hardship" by giving them a powerful weapon with which to force bankrupts to pay their debts despite their discharge. Whereas the Acts in Kesler and Reitz had the effect of frustrating federal law but had, the Court said, no such purpose, the Arizona Act has both that effect and that purpose. Believing as we do that Kesler and Reitz are not in harmony with sound constitutional principle, they certainly should not be extended to cover this new and distinguishable case. IV One final argument merits discussion. The dissent points out that the District of Columbia Code contains an anti-discharge provision similar to that included in the Arizona Act. Motor Vehicle Safety Responsibility Act of the District of Columbia, D. C. Code Ann. § 40-464 (1967), 68 Stat. 132. In light of our decision today, the sum of the argument is to draw into question the constitutional validity of the District's anti-discharge section, for as noted in the dissent the Constitution confers upon Congress the power "[t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." U. S. Const., Art. I, § 8, cl. 4 (emphasis *655 added). It is asserted that "Congress must have regarded the two statutes as consistent and compatible," post, at 665, but such an argument assumes a modicum of legislative attention to the question of consistency. The D. C. Code section does, of course, refer specifically to discharges, but its passage may at most be viewed as evidencing an opinion of Congress on the meaning of the general discharge provision enacted by an earlier Congress and interpreted by this Court as early as 1925. See Lewis v. Roberts, supra. In fact, in passing the initial and amended version of the District of Columbia financial responsibility law, Congress gave no attention to the interaction of the anti-discharge section with the Bankruptcy Act.[15] Moreover, the legislative history is *656 quite clear that when Congress dealt with the subject of financial responsibility laws for the District, it based its work upon the efforts of the uniform commissioners which had won enactment in other States.[16] Had Congress focused on the interaction between this minor subsection of the rather lengthy financial responsibility act and the discharge provision of the Bankruptcy Act, it would have been immediately apparent to the legislators that the only constitutional method for so defining the scope and effect of a discharge in bankruptcy was by amendment of the Bankruptcy Act, which by its terms is a uniform statute applicable in the States, Territories, and the District of Columbia. 11 U.S. C. § 1 (29). To follow any other course would obviously be to legislate in such a way that a discharge in bankruptcy means one thing in the District of Columbia and something else in the States—depending on state law—a result explicitly prohibited by the uniformity requirement in the constitutional authorization to Congress to enact bankruptcy legislation. V From the foregoing, we think it clear that § 28-1163 (B) of the Arizona Safety Responsibility Act is constitutionally invalid. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *657 MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART. I concur in the result as to petitioner Emma Perez and dissent as to petitioner Adolfo Perez. I The slaughter on the highways of this Nation exceeds the death toll of all our wars.[1] The country is fragmented about the current conflict in Southeast Asia, but I detect little genuine public concern about what takes place in our very midst and on our daily travel routes. See Tate v. Short, 401 U.S. 395, 401 (1971) (concurring opinion). This being so, it is a matter of deep concern to me that today the Court lightly brushes aside and overrules two cases where it had upheld a representative attempt by the States to regulate traffic and where the Court had considered and rejected the very Supremacy Clause argument that it now discovers to be so persuasive.[2] II I think it is desirable to stress certain factual details. The facts, of course, are only alleged, but for purposes of the motion to dismiss, we are to accept them as true. Cooper v. Pate, 378 U.S. 546 (1964). Arizona is a community property state. Adolfo and Emma Perez are husband and wife. They were resident citizens of Arizona at the time of the accident in Tucson in July 1965. Mr. Perez was driving an automobile registered in his name. He was alone. Mrs. Perez was not with him and had nothing to do with her husband's *658 operation of the car on that day. The automobile, however, was the property of the marital community. Accompanying, and supposedly supportive of, the Perez complaint in the present suit, were affidavits of Mr. and Mrs. Perez. These affidavits asserted that the Perezes had four minor children ages 6 to 17; that Emma is a housewife and not otherwise gainfully employed; that Emma's inability to drive has required their two older children, aged 17 and 14, to walk one and a half miles to high school and the third child, aged 9, one mile to elementary school, with consequent nosebleeding; that Emma's inability to drive has caused inconvenience and financial injury; and that Adolfo's inability to drive has caused inconvenience because he must rely on others for transportation or use public facilities or walk. III The Statutory Plan Arizona has a comprehensive statutory plan for the regulation of vehicles upon its highways. Ariz. Rev. Stat. Ann., Tit. 28. Among the State's efforts to assure responsibility in this area of increasing national concern are its Uniform Motor Vehicle Operators' and Chauffeurs' License Act (c. 4), its Uniform Act Regulating Traffic on Highways (c. 6), and its Uniform Motor Vehicle Safety Responsibility Act (c. 7).[3] The challenged § 28-1163 (B) is a part of the Motor Vehicle Safety Responsibility Act. The Act's provisions are not unfamiliar. There is imposed upon the Motor *659 Vehicle Division Superintendent the duty to suspend the license of each operator, and the registration of each owner, of a motor vehicle involved in an accident resulting in bodily injury or death or property damage to any one person in excess of $100, except, among other situations, where proof of financial responsibility, as by the deposit of appropriate security or by the presence of a liability policy of stated minimum coverage, is afforded. §§ 28-1142 (Supp. 1970-1971), 28-1143, and 28-1167. The suspension, once imposed, remains until the required security is deposited or until one year has elapsed and no action for damages has been instituted. § 28-1144. If the registrant or operator fails, within 60 days, to satisfy an adverse motor vehicle final judgment, as defined in § 28-1102 (2) (Supp. 1970-1971), the court clerk has the duty to notify the Superintendent and the latter to suspend the license and registration of the judgment debtor. §§ 28-1161 (A) and 28-1162 (A). But if the judgment creditor consents in writing that the debtor be allowed to retain his license and registration, the Superintendent in his discretion may grant that privilege. § 28-1162 (B). Otherwise the suspension remains in effect until the judgment is satisfied. § 28-1163 (A). Payments of stated amounts are deemed to satisfy the judgment, § 28-1164 (Supp. 1970-1971), and court-approved installment payment of the judgment will preserve the license and registration, § 28-1165. IV Adolfo Perez Inasmuch as the case is before us on the motion of defendants below to dismiss the Perez complaint that alleged Adolfo's driving alone, the collision, and the judgment in favor of the Pinkertons, it is established, for present purposes, that the Pinkerton judgment was *660 based on Adolfo's negligence in driving the Perez vehicle. Adolfo emphasizes, and I recognize, that under Art. I, § 8, cl. 4, of the Constitution, Congress has possessed the power to establish "uniform Laws on the subject of Bankruptcies throughout the United States"; that, of course, this power, when exercised, as it has been since 1800, is "exclusive," New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U.S. 656, 661 (1876), and "unrestricted and paramount," International Shoe Co. v. Pinkus, 278 U.S. 261, 265 (1929); that one of the purposes of the Bankruptcy Act is to "relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh . . . ," Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554-555 (1915); and that a bankrupt by his discharge receives "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre&emul;xisting debt," Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). From these general and accepted principles it is argued that § 28-1163 (B), with its insistence upon post-discharge payment as a condition for license and registration restoration, is violative of the Bankruptcy Act and, thus, of the Supremacy Clause. As Mr. Perez acknowledges in his brief here, the argument is not new. It was raised with respect to a New York statute in Reitz v. Mealey, 314 U.S. 33 (1941), and was rejected there by a five-to-four vote: "The use of the public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees *661 and to protect others using the highway is consonant with due process. . . . ..... "The penalty which § 94-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety." 314 U.S., at 36-37. Left specifically unanswered in that case, but acknowledged as a "serious question," 314 U.S., at 38, was the claim that interim amendments of the statutes gave the creditor control over the initiation and duration of the suspension and thus violated the Bankruptcy Act. The dissenters, speaking through MR. JUSTICE DOUGLAS, concluded that that constitutional issue "cannot be escaped. . . unless we are to overlook the realities of collection methods." 314 U.S., at 43. Nine years ago, the same argument again was advanced, this time with respect to Utah's Motor Vehicle Safety Responsibility Act, and again was rejected. Kesler v. Department of Public Safety, 369 U.S. 153, 158-174 (1962). There, Utah's provisions relating to duration of suspension and restoration, more stringent than those of New York, were challenged. It was claimed that the statutes made the State a "collecting agent for the creditor rather than furthering an interest in highway safety," *662 and that suspension that could be perpetual "only renders the collection pressure more effective." 369 U.S., at 169. There was a troublesome jurisdictional issue in the case, the decision as to which was later overruled, Swift & Co. v. Wickham, 382 U.S. 111, 124-129 (1965), but on the merits the Court, by a five-to-three vote, sustained all the Utah statutes then under attack:[4] "But the lesson Zavelo [v. Reeves, 227 U.S. 625 (1913)] and Spalding [v. New York ex rel. Backus, 4 How. 21 (1845)] teach is that the Bankruptcy Act does not forbid a State to attach any consequence whatsoever to a debt which has been discharged. "The Utah Safety Responsibility Act leaves the bankrupt to some extent burdened by the discharged debt. Certainly some inroad is made on the consequences of bankruptcy if the creditor can exert pressure to recoup a discharged debt, or part of it, through the leverage of the State's licensing and registration power. But the exercise of this power is deemed vital to the State's well-being, and, from the point of view of its interests, is wholly unrelated to the considerations which propelled Congress to enact a national bankruptcy law. There are here overlapping interests which cannot be uncritically resolved by exclusive regard to the money consequences of enforcing a widely adopted measure for safeguarding life and safety. ". . . At the heart of the matter are the complicated demands of our federalism. "Are the differences between the Utah statute and *663 that of New York so significant as to make a constitutionally decisive difference? A State may properly decide, as forty-five have done, that the prospect of a judgment that must be paid in order to regain driving privileges serves as a substantial deterrent to unsafe driving. We held in Reitz that it might impose this requirement despite a discharge, in order not to exempt some drivers from appropriate protection of public safety by easy refuge in bankruptcy.. . . To whatever extent these provisions make it more probable that the debt will be paid despite the discharge, each no less reflects the State's important deterrent interest. Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia; we do not believe Utah's identical statute conflicts with it either. "Utah is not using its police power as a devious collecting agency under the pressure of organized creditors. Victims of careless car drivers are a wholly diffused group of shifting and uncertain composition, not even remotely united by a common financial interest. The Safety Responsibility Act is not an Act for the Relief of Mulcted Creditors. It is not directed to bankrupts as such. Though in a particular case a discharged bankrupt who wants to have his rightfully suspended license and registration restored may have to pay the amount of a discharged debt, or part of it, the bearing of the statute on the purposes served by bankruptcy legislation is essentially tangential." 369 U.S., at 170-174 (footnotes omitted). MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, dissented on the ground that Utah Code Ann. § 41-12-15 (1953), essentially identical to Arizona's § 28-1163 (B), *664 operated to deny the judgment debtor the federal immunity given him by § 17 of the Bankruptcy Act and, hence, violated the Supremacy Clause. 369 U.S., at 182-185. The Perezes in their brief, p. 7, acknowledge that the Arizona statutes challenged here "are not unlike the Utah ones discussed in Kesler." Accordingly, Adolfo Perez is forced to urge that Reitz and the remaining portion of Kesler that bears upon the subject be overruled. The Court bows to that argument. I am not prepared to overrule those two cases and to undermine their control over Adolfo Perez' posture here. I would adhere to the rulings and I would hold that the States have an appropriate and legitimate concern with highway safety; that the means Arizona has adopted with respect to one in Adolfo's position (that is, the driver whose negligence has caused harm to others and whose judgment debt based on that negligence remains unsatisfied) in its attempt to assure driving competence and care on the part of its licensees, as well as to protect others, is appropriate state legislation; and that the Arizona statute, like its Utah counterpart, despite the tangential effect upon bankruptcy, does not operate in derogation of the Bankruptcy Act or conflict with it to the extent it may rightly be said to violate the Supremacy Clause. Other factors of significance are also to be noted: 1. The Court struggles to explain away the parallel District of Columbia situation installed by Congress itself. Section 40-464 of the D. C. Code Ann. (1967) in all pertinent parts is identical with Arizona's § 28-1163 (B). The only difference is in the final word, namely, "article" in the Arizona statute and "chapter" in the District's. The District of Columbia statute was enacted as § 48 of Pub. Law 365 of May 25, 1954, effective one year later, 68 Stat. 132. This is long after the Bankruptcy Act *665 was placed on the books and, indeed, long after this Court's decision in Lewis v. Roberts, 267 U.S. 467 (1925), that a personal injury judgment is a provable claim in bankruptcy. Surely, as the Court noted in Kesler, 369 U. S., at 173-174, "Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia." See Lee v. England, 206 F. Supp. 957 (DC 1962). Congress must have regarded the two statutes as consistent and compatible, and cannot have thought otherwise for the last 35 years.[5] If the statutes truly are in tension, then I would suppose that the later one, that is, § 40-464, would be the one to prevail. Gibson v. United States, 194 U.S. 182, 192 (1904). But, if so, we then have something less than the "uniform Laws on the subject of Bankruptcies throughout the United States" that Art. I, § 8, cl. 4, of the Constitution commands, for the law would be one way in Arizona (and, by the present overruling of Reitz and Kesler, in New York and in Utah) and the other way in the District of Columbia. Unfortunately, such is the dilemma in which the Court's decision today leaves us. 2. Arizona's § 28-1163 (B) also has its counterparts in the statutes of no less than 44 other States.[6] It is, after *666 all, or purports to be, a uniform Act. I suspect the Court's decision today will astonish those members of the Congress who were responsible for the District of Columbia Code provision, and will equally astonish the legislatures of those 44 States that absorbed assurance from Reitz and Kesler that the provision withstands constitutional attack. 3. The Court rationalizes today's decision by saying that Kesler went beyond Reitz and that the present case goes beyond Kesler, and that that is too much. It would justify this by noting the Arizona Supreme Court's characterization of the Arizona statute as one for the protection of the public from financial hardship and by concluding, *667 from this description, that the statute is not a public highway safety measure, but rather a financial one protective, I assume the implication is, of insurance companies. The Arizona court's characterization of its statute, I must concede, is not a fortunate one. However, I doubt that that court, in evolving that description, had any idea of the consequences to be wrought by this Court's decision today. I am not willing to say that the description in Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), embraced the only purpose of the State's legislation. Section 28-1163 (B) is a part of the State's Motor Vehicle Safety Responsibility Act and does not constitute an isolated subchapter of that Act concerned only with financial well-being of the victims of drivers' negligence. In any event, as the Court's opinion makes clear, the decision today would be the same however the Arizona court had described its statute. 4. While stare decisis "is no immutable principle,"[7] as a glance at the Court's decisions over the last 35 years, or over almost any period for that matter, will disclose, it seems to me that the principle does have particular validity and application in a situation such as the one confronting the Court in this case. Here is a statute concerning motor vehicle responsibility, a substantive matter peculiarly within the competence of the State rather than the National Government. Here is a serious and conscientious attempt by a State to legislate and do something about the problem that, in terms of death and bodily injury and adverse civilian effect, is so alarming. Here is a statute widely adopted by the several States and legitimately assumed by the lawmakers of those States to be consistent with the Bankruptcy Act, an assumption rooted in positive, albeit divided, decision *668 by this Court, not once, but twice. And here is a statute the Congress itself, the very author of the Bankruptcy Act, obviously considered consistent therewith. I fear that the Court today makes stare decisis meaningless and downgrades it to the level of a tool to be used or cast aside as convenience dictates. I doubt if Justices Roberts, Stone, Reed, Frankfurter, Murphy, Warren, Clark, HARLAN, BRENNAN, and STEWART, who constituted the respective majorities on the merits in Reitz and Kesler, were all that wrong. 5. Adolfo's affidavit protestation of hardship goes no further than to assert a resulting reliance upon friends and neighbors or upon public transportation or upon walking to cover the seven miles from his home to his place of work; this is inconvenience, perhaps, even in this modern day when we are inclined to equate convenience with necessity and to eschew what prior generations routinely accepted as part of the day's labor, but it falls far short of the "great harm" and "irreparable injury" that he otherwise asserts only in general and conclusory terms. Perez' professed inconvenience stands vividly and starkly in contrast with his victims' injuries. But as is so often the case, the victim, once damaged, is seemingly beyond concern. What seems to become important is the perpetrator's inconvenience. 6. It is conceded that Arizona constitutionally could prescribe liability insurance as a condition precedent to the issuance of a license and registration. V Emma Perez Emma Perez' posture is entirely different. Except for possible emotional strain resulting from her husband's predicament, she was in no way involved in the Pinkerton accident. She was not present when it occurred and no negligence or nonfeasance on her part contributed to it. *669 Emma thus finds herself in a position where, having done no wrong, she nevertheless is deprived of her operator's license. This comes about because the Perez vehicle concededly was community property under § 25-211 (A), and because, for some reason, the judgment was confessed as to her as well as against her husband. As one amicus brief describes it, Emma, a fault-free driver, "is without her license solely because she is the impecunious wife of an impecunious, negligent driver in a community property state." At this point a glance at the Arizona community property system perhaps is indicated. Emma Perez was a proper nominal defendant in the Pinkerton lawsuit, see Donato v. Fishburn, 90 Ariz. 210, 367 P.2d 245 (1961), but she was not a necessary party there. First National Bank v. Reeves, 27 Ariz. 508, 517, 234 P. 556, 560 (1925); Bristol v. Moser, 55 Ariz. 185, 190-191, 99 P.2d 706, 709 (1940). However, a judgment against a marital community based upon the husband's tort committed without the wife's knowledge or consent does not bind her separate property. Ruth v. Rhodes, 66 Ariz. 129, 138, 185 P.2d 304, 310 (1947). The judgment would, of course, bind the community property vehicle to the extent permitted by Arizona law. See § 33-1124. In Arizona during coverture personal property may be disposed of only by the husband. § 25-211 (B). The community personalty is subject to the husband's dominance in management and control. Mortensen v. Knight, 81 Ariz. 325, 334, 305 P.2d 463, 469 (1956). The wife has no power to make contracts binding the common property. § 25-214 (A). Her power to contract is limited to necessaries for herself and the children. § 25-215. Thus, as the parties appear to agree, she could neither enter into a contract for the purchase of an automobile nor acquire insurance upon it except by use of her separate property. *670 The Court of Appeals ruled that Mrs. Perez' posture, as the innocent wife who had no connection with the negligent conduct that led to the confession and entry of judgment, was, under the logic of Kesler and Reitz, "a distinction without a significant difference" even though "she had no alternative." 421 F.2d 619, 622-623. The court opined that the spouse can acquire an automobile with her separate funds and that negligent operation of it on separate business would then not call into question the liability of the other spouse. It described Emma's legal status as "closely analogous" to that of the automobile owner who permits another person to drive, and it regarded as authority cases upholding a State's right to revoke the owner's license and registration after judgment had been entered against him and remains unsatisfied. The husband was described, under Arizona law, as the managing agent of the wife in the control of the community automobile, and "the driver's licenses of both husband and wife are an integral part of the ball of wax, which is the basis of the Arizona community property laws." The loss of her license "is the price an Arizona wife must pay for negligent driving by her husband of the community vehicle" when the resulting judgment is not paid. 421 F.2d, at 624. For what it is worth, Emma's affidavit is far more persuasive of hardship than Adolfo's. She relates the family automobile to the children and their medical needs and to family purchasing at distant discount stores. But I need not, and would not, decide her case on the representations in her affidavit. I conclude that the reasoning of the Court of Appeals, in its application to Emma Perez and her operator's license, does not comport with the purpose and policy of the Bankruptcy Act and that it effects a result at odds with the Supremacy Clause. Emma's subordinate *671 position with respect to the community's personal property, and her complete lack of connection with the Pinkerton accident and with the negligence that occasioned it, are strange accompaniments for the deprival of her operator's license. The nexus to the state police power, claimed to exist because of her marriage to the negligent Adolfo and the community property character of the accident vehicle, is, for me, elusive and unconvincing. The argument based on Arizona's appropriate concern with highway safety, that prompts me to adhere to the Reitz-Kesler rationale for Adolfo, is drained of all force and persuasion when applied to the innocent Emma. Despite the underlying community property legal theory, Emma had an incident of ownership in the family automobile only because it was acquired during coverture. She had no "control" over Adolfo's use of the vehicle and she could not forbid his use as she might have been able to do were it her separate property. Thus, the state purpose in deterring the reckless driver and his unsafe driving has only undeserved punitive application to Emma. She is personally penalized not only with respect to the operation of the Perez car but also with respect to any automobile. I therefore would hold that under these circumstances the State's action, under § 28-1163 (B), in withholding from Emma her operator's license is not, within the language of Reitz, an appropriate means for Arizona "to insure competence and care on the part of [Emma] and to protect others" using the highways, 314 U.S., at 36, and that it interferes with the paramount federal interest in her bankruptcy discharge and violates the Supremacy Clause. [For Appendix to opinion of BLACKMUN, J., see post, p. 672.] *672

This raises an important issue concerning the construction of the Supremacy Clause of the Constitution— whether which is part of Arizona's Motor Vehicle Safety Responsibility Act, is invalid under that clause as being in conflict with the mandate of 17 of the Bankruptcy Act, 11 U.S. C. 35, providing that receipt of a discharge in bankruptcy fully discharges all but certain specified judgments. The courts below, concluding that this was controlled by and two earlier opinions of this Court dealing with alleged conflicts between the Bankruptcy Act and state financial responsibility laws, ruled against the claim of conflict and upheld the Arizona statute. On July 8, 1965, petitioner Adolfo Perez, driving a car registered in his name, was involved in an automobile accident in Tucson, Arizona. The Perez automobile was not covered by liability insurance at the time of the collision. The driver of the second car was the minor daughter of Leonard Pinkerton, and in September the Pinkertons sued Mr. and Mrs. Perez in state court for personal injuries and property damage sustained in the accident. On October 31, the petitioners confessed judgment in this suit, and a judgment order was entered against them on November 8, for $2,425.98 plus court costs. Mr. and Mrs. Perez each filed a voluntary petition in bankruptcy in Federal District Court on November 6, Each of them duly scheduled the judgment debt *639 to the Pinkertons. The District Court entered orders on July 8, discharging both Mr. and Mrs. Perez from all debts and claims provable against their estates, including the Pinkerton judgment. 11 U.S. C. 35; During the pendency of the bankruptcy proceedings, the provisions of the Arizona Motor Vehicle Safety Responsibility Act came into play. Although only one provision of the Arizona Act is relevant to the issue presented by this it is appropriate to describe the statutory scheme in some detail. The Arizona statute is based on the Uniform Motor Vehicle Safety Responsibility Act promulgated by the National Conference on Street and Highway Safety.[1] Articles 1 and 2 of the Act deal, respectively, with definitional matters and administration. The substantive provisions begin in Art. 3, which requires the posting of financial security by those involved in accidents. Section 28-1141 of that article requires suspension of licenses for unlawful failure to report accidents, and 28-1142 provides that within 60 days of the receipt of an accident report the Superintendent of the Motor Vehicle Division of the Highway Department shall suspend the driver's license of the operator and the registration of the owner of a car involved in an accident "unless such operator or owner or both shall deposit security in a sum which is sufficient in the judgment of the superintendent to satisfy any judgment or judgments for damages resulting from the accident as may be recovered against the operator or owner." Under the same section, notice of such suspension and the amount of security required must be sent to the owner and operator not less than 10 days prior to the effective date of the suspension. This section does not apply if the owner or the operator carried liability *640 insurance or some other covering bond at the time of the accident, or if such individual had previously qualified as a self-insurer under 28-1222. Other exceptions to the requirement that security be posted are stated in 28-1143.[2] If none of these exceptions applies, the suspension continues until: (1) the person whose privileges were suspended deposits the security required under 28-1142 ; (2) one year elapses from the date of the accident and the person whose privileges were suspended files proof with the Superintendent that no one has initiated an action for damages arising from the accident; (3) evidence is filed with the superintendent that a release from liability, an adjudication of nonliability, a confession of judgment, or some other written settlement agreement has been entered.[3] As far as the record in the instant shows, *641 the provisions of Art. 3 were not invoked against petitioners, and the constitutional validity of these provisions is, of course, not before us for decision. Article 4 of the Arizona Act, which includes the only provision at issue here, deals with suspension of licenses and registrations for nonpayment of judgments. Interestingly, it is only when the judgment debtor in an automobile accident lawsuit—usually an owner-operator like Mr. Perez—fails to respond to a judgment entered against him that he must overcome two hurdles in order to regain his driving privileges. Section 28-1161, the first section of Art. 4, requires the state court clerk or judge, when a judgment[4] has remained unsatisfied for 60 days after entry, to forward a certified copy of the judgment to the superintendent.[5] This was done in the present and on March 13, Mr. and Mrs. Perez were served with notice that their drivers' licenses and registration were suspended pursuant to 28-1162[6] Under other provisions of Art. 4, such suspension is to *642 continue until the judgment is paid,[7] and 28-1163 specifically provides that "[a] discharge in bankruptcy following the rendering of any such judgment shall not relieve the judgment debtor from any of the requirements of this article." In addition to requiring satisfaction of the judgment debt, 28-1163 provides that the license and registration "shall remain suspended and shall not be renewed, nor shall any license or registration be thereafter issued in the name of the person until the person gives proof of financial responsibility" for a future period.[8] Again, the validity of this limited requirement that some drivers post evidence of financial responsibility for the future in order to regain driving privileges is not questioned here. Nor is the broader issue of whether a *643 State may require proof of financial responsibility as a precondition for granting driving privileges to anyone before us for decision. What is at issue here is the power of a State to include as part of this comprehensive enactment designed to secure compensation for automobile accident victims a section providing that a discharge in bankruptcy of the automobile accident tort judgment shall have no effect on the judgment debtor's obligation to repay the judgment creditor, at least insofar as such repayment may be enforced by the withholding of driving privileges by the State. It was that question, among others, which petitioners raised after suspension of their licenses and registration by filing a complaint in Federal District Court seeking declaratory and injunctive relief and requesting a three-judge court. They asserted several constitutional violations, and also alleged that 28-1163 was in direct conflict with the Bankruptcy Act and was thus violative of the Supremacy Clause of the Constitution.[9] In support of their complaint, Mr. and Mrs. Perez filed affidavits stating that the suspension of their licenses and registration worked both physical and financial hardship upon them and their children. The District Judge granted the petitioners leave to proceed in forma pauperis, but thereafter granted the respondents' motion to dismiss the complaint for failure to state a claim upon which relief could be granted, citing and Reitz.[10] The Court of Appeals affirmed, relying on *644 the same two decisions. We granted certiorari. I Deciding whether a state statute is in conflict with a federal statute and hence invalid under the Supremacy Clause is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict. In the present both statutes have been authoritatively construed. In the Supreme Court of Arizona held that "[t]he Financial Responsibility Act has for its principal purpose the protection of the public using the from financial hardship which may result from the use of automobiles by financially irresponsible persons." 380 P. 2d, at 140. The Arizona court has consistently adhered to this construction of its legislation, see ; New York Underwriters Ins. ; ; ; Ariz. 302, ; 1 and we are bound by its rulings. See, e. g., General Trading Although the dissent seems unwilling to accept the Arizona Supreme Court's construction of the statute as expressive of the Act's primary purpose[11]*645 and indeed characterizes that construction as unfortunate, post, at 6, a reading of the provisions outlined above leaves the impression that the Arizona Court's *646 description of the statutory purpose is not only logical but persuasive. The sole emphasis in the Act is one of providing leverage for the collection of damages from *6 drivers who either admit that they are at fault or are adjudged negligent. The victim of another driver's carelessness, if he so desires, can exclude the superintendent entirely from the process of "deterring" a repetition of that driver's negligence.[12] Further, if an *648 accident is litigated and a special verdict that the defendant was negligent and the plaintiff contributorily negligent is entered, the result in Arizona, as in many other States, is that there is no liability for damages arising from the accident. 0 P.2d 107 ; Under the Safety Responsibility Act, the apparent result of such a judgment is that no consequences are visited upon either driver although both have been found to have driven carelessly. See Ariz. Rev. Stat. Ann. 28-1143 (4), 28-1144 (3). Moreover, there are no provisions requiring drivers proved to be careless to stay off the roads for a period of time. Nor are there provisions requiring drivers who have caused accidents to attend some kind of driver improvement course, a technique that is not unfamiliar in sentencing for traffic offenses. Turning to the federal statute, the construction of the Bankruptcy Act is similarly clear. This Court on numerous occasions has stated that "[o]ne of the primary purposes of the bankruptcy act" is to give debtors "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre&emul;xisting debt." Local Loan Accord, e. g., 317 U.S. 4, ; ; There can be no doubt, given that Congress intended this "new opportunity" to include freedom from most kinds of pre-existing tort judgments. *649 II With the construction of both statutes clearly established, we proceed immediately to the constitutional question whether a state statute that protects judgment creditors from "financially irresponsible persons" is in conflict with a federal statute that gives discharged debtors a new start "unhampered by the pressure and discouragement of pre&emul;xisting debt." As early as Chief Justice Marshall stated the governing principle—that "acts of the State Legislatures. [which] interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution," are invalid under the Supremacy Three decades ago MR. JUSTICE BLACK, after reviewing the precedents, wrote in a similar vein that, while "[t]his Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, ha[d] made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference[,] [i]n the final analysis," our function is to determine whether a challenged state statute "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Since Hines the Court has frequently adhered to this articulation of the meaning of the Supremacy See, e. g., ; Sears, Roebuck & ; Colorado Anti-Discrimination ; ; ; Sola Electric Indeed, in Florida Lime & *650 Avocado Growers, a recent in which the Court was closely divided, all nine Justices accepted the Hines test. 165 Both [13] and Reitz, however, ignored this controlling principle. The Court in conceded that Utah's financial responsibility law left "the bankrupt to some extent burdened by the discharged debt," made "it more probable that the debt will be paid despite the discharge," and thereby made "some inroad on the consequences of bankruptcy." Utah's statute, in short, frustrated Congress' policy of giving discharged debtors a new start. But the majority was not concerned by this frustration. In upholding the statute, the majority opinion did not look to the effect of the legislation but simply asserted that the statute was "not an Act for the Relief of Mulcted Creditors," and was "not designed to aid collection of debts but to enforce a policy against irresponsible driving" The majority, that is, looked to the purpose of the state legislation and upheld it because the purpose was not to circumvent the Bankruptcy Act but to promote highway safety; those in dissent, however, were concerned that, whatever the purpose of the Utah Act, its "plain and inevitable effect [was] to create a powerful weapon for collection of a debt from which [the] bankrupt [had] been released by federal law." Such a result, they argued, left "the States free to impair an important and historic policy *651 of this Nation embodied in its bankruptcy laws." The opinion of the Court in Reitz was similarly concerned, not with the fact that New York's financial responsibility law frustrated the operation of the Bankruptcy Act, but with the purpose of the law, which was divined as the promotion of highway safety. As the Court said: "The penalty which 94-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety." The dissenting opinion written by MR. JUSTICE DOUGLAS for himself and three others noted that the New York legislation put "the bankrupt at the creditor's mercy," with the results that "[i]n practical effect the bankrupt may be in as bad, or even worse, a position than if the state had made it possible for a creditor to attach his future wages" and that "[b]ankruptcy [was not] the sanctuary for hapless debtors which Congress intended." We can no longer adhere to the aberrational doctrine of and Reitz that state law may frustrate the operation of federal law as long as the state legislature in passing its law had some purpose in mind other than *652 one of frustration. Apart from the fact that it is at odds with the approach taken in nearly all our Supremacy Clause s, such a doctrine would enable state legislatures to nullify nearly all unwanted federal legislation by simply publishing a legislative committee report articulating some state interest or policy—other than frustration of the federal objective—that would be tangentially furthered by the proposed state law. In view of the consequences, we certainly would not apply the doctrine in all Supremacy Clause s. Although it is possible to argue that and Reitz are somehow confined to s involving either bankruptcy or highway safety, analysis discloses no reason why the States should have broader power to nullify federal law in these fields than in others. Thus, we conclude that and Reitz can have no authoritative effect to the extent they are inconsistent with the controlling principle that any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Section 28-1163 thus may not stand. III Even accepting the Supremacy Clause analysis of and Reitz—that is, looking to the purpose rather than the effect of state laws—those decisions are not dispositive of this Just as went a step beyond Reitz and broadened the holding of the earlier so in the present the respondents asked the courts below and this Court to expand the holdings of the two previous s. The distinction between and Reitz and this lies in the State's expressed legislative purpose. and Reitz were aberrational in their treatment of this question as well. The majority opinions in both s assumed, without citation of state court authority or any indication that such precedent was unavailable, *653 that the purpose of the state financial responsibility laws there under attack was not provision of relief to creditors but rather deterrence of irresponsible driving. The assumption was, in effect, that all state legislatures which had enacted provisions such as 28-1163 had concluded that an uninsured motorist about to embark in his car would be more careful on the road if he did not have available what the majority in cavalierly characterized as an "easy refuge in bankruptcy." 369 U.S.,[14] Passing the question of whether the Court gave sufficient attention to binding state interpretations of state legislative purpose and conceding that it employed proper technique in divining as obvious from their face the aim of the state enactments, the present raises doubts about whether the Court was correct even in its basic assumptions. The Arizona Supreme Court has declared that Arizona's Safety Responsibility Act "has for its principal purpose the protection *654 of the public from financial hardship" resulting from involvement in traffic accidents with uninsured motorists unable to respond to a judgment. The Court in was able to declare, although the source of support is unclear, that the Utah statute could be upheld because it was "not an Act for the Relief of Mulcted Creditors" or a statute "designed to aid collection of debts." 369 U.S., 169. But here the respondents urge us to uphold precisely the sort of statute that would have stricken down—one with a declared purpose to protect judgment creditors "from financial hardship" by giving them a powerful weapon with which to force bankrupts to pay their debts despite their discharge. Whereas the Acts in and Reitz had the effect of frustrating federal law but had, the Court said, no such purpose, the Arizona Act has both that effect and that purpose. Believing as we do that and Reitz are not in harmony with sound constitutional principle, they certainly should not be extended to cover this new and distinguishable IV One final argument merits discussion. The dissent points out that the District of Columbia Code contains an anti-discharge provision similar to that included in the Arizona Act. Motor Vehicle Safety Responsibility Act of the District of Columbia, D. C. Code Ann. 40-464 In light of our decision today, the sum of the argument is to draw into question the constitutional validity of the District's anti-discharge section, for as noted in the dissent the Constitution confers upon Congress the power "[t]o establish uniform Laws on the subject of Bankruptcies throughout the United States." U. S. Const., Art. I, 8, cl. 4 (emphasis *655 added). It is asserted that "Congress must have regarded the two statutes as consistent and compatible," post, at 665, but such an argument assumes a modicum of legislative attention to the question of consistency. The D. C. Code section does, of course, refer specifically to discharges, but its passage may at most be viewed as evidencing an opinion of Congress on the meaning of the general discharge provision enacted by an earlier Congress and interpreted by this Court as early as 5. See In fact, in passing the initial and amended version of the District of Columbia financial responsibility law, Congress gave no attention to the interaction of the anti-discharge section with the Bankruptcy Act.[15] Moreover, the legislative history is *656 quite clear that when Congress dealt with the subject of financial responsibility laws for the District, it based its work upon the efforts of the uniform commissioners which had won enactment in other States.[16] Had Congress focused on the interaction between this minor subsection of the rather lengthy financial responsibility act and the discharge provision of the Bankruptcy Act, it would have been immediately apparent to the legislators that the only constitutional method for so defining the scope and effect of a discharge in bankruptcy was by amendment of the Bankruptcy Act, which by its terms is a uniform statute applicable in the States, Territories, and the District of Columbia. 11 U.S. C. 1 (29). To follow any other course would obviously be to legislate in such a way that a discharge in bankruptcy means one thing in the District of Columbia and something else in the States—depending on state law—a result explicitly prohibited by the uniformity requirement in the constitutional authorization to Congress to enact bankruptcy legislation. V From the foregoing, we think it clear that 28-1163 of the Arizona Safety Responsibility Act is constitutionally invalid. The judgment of the Court of Appeals is reversed and the is remanded for further proceedings consistent with this opinion. It is so ordered. *657 MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART. I concur in the result as to petitioner Emma Perez and dissent as to petitioner Adolfo Perez. I The slaughter on the of this Nation exceeds the death toll of all our wars.[1] The country is fragmented about the current conflict in Southeast Asia, but I detect little genuine public concern about what takes place in our very midst and on our daily travel routes. See This being so, it is a matter of deep concern to me that today the Court lightly brushes aside and overrules two s where it had upheld a representative attempt by the States to regulate traffic and where the Court had considered and rejected the very Supremacy Clause argument that it now discovers to be so persuasive.[2] II I think it is desirable to stress certain factual details. The facts, of course, are only alleged, but for purposes of the motion to dismiss, we are to accept them as true. Arizona is a community property state. Adolfo and Emma Perez are husband and wife. They were resident citizens of Arizona at the time of the accident in Tucson in July 1965. Mr. Perez was driving an automobile registered in his name. He was alone. Mrs. Perez was not with him and had nothing to do with her husband's *658 operation of the car on that day. The automobile, however, was the property of the marital community. Accompanying, and supposedly supportive of, the Perez complaint in the present suit, were affidavits of Mr. and Mrs. Perez. These affidavits asserted that the Perezes had four minor children ages 6 to 17; that Emma is a housewife and not otherwise gainfully employed; that Emma's inability to drive has required their two older children, aged 17 and 14, to walk one and a half miles to high school and the third child, aged 9, one mile to elementary school, with consequent nosebleeding; that Emma's inability to drive has caused inconvenience and financial injury; and that Adolfo's inability to drive has caused inconvenience because he must rely on others for transportation or use public facilities or walk. III The Statutory Plan Arizona has a comprehensive statutory plan for the regulation of vehicles upon its Ariz. Rev. Stat. Ann., Tit. 28. Among the State's efforts to assure responsibility in this area of increasing national concern are its Uniform Motor Vehicle Operators' and Chauffeurs' License Act (c. 4), its Uniform Act Regulating Traffic on Highways (c. 6), and its Uniform Motor Vehicle Safety Responsibility Act (c. 7).[3] The challenged 28-1163 is a part of the Motor Vehicle Safety Responsibility Act. The Act's provisions are not unfamiliar. There is imposed upon the Motor *659 Vehicle Division Superintendent the duty to suspend the license of each operator, and the registration of each owner, of a motor vehicle involved in an accident resulting in bodily injury or death or property damage to any one person in excess of $, except, among other situations, where proof of financial responsibility, as by the deposit of appropriate security or by the presence of a liability policy of stated minimum coverage, is afforded. 28-1142 28-1143, and 28-11. The suspension, once imposed, remains until the required security is deposited or until one year has elapsed and no action for damages has been instituted. 28-1144. If the registrant or operator fails, within 60 days, to satisfy an adverse motor vehicle final judgment, as defined in 28-1102 (2) the court clerk has the duty to notify the Superintendent and the latter to suspend the license and registration of the judgment debtor. 28-1161 and 28-1162 But if the judgment creditor consents in writing that the debtor be allowed to retain his license and registration, the Superintendent in his discretion may grant that privilege. 28-1162 Otherwise the suspension remains in effect until the judgment is satisfied. 28-1163 Payments of stated amounts are deemed to satisfy the judgment, 28-1164 and court-approved installment payment of the judgment will preserve the license and registration, 28-1165. IV Adolfo Perez Inasmuch as the is before us on the motion of defendants below to dismiss the Perez complaint that alleged Adolfo's driving alone, the collision, and the judgment in favor of the Pinkertons, it is established, for present purposes, that the Pinkerton judgment was *660 based on Adolfo's negligence in driving the Perez vehicle. Adolfo emphasizes, and I recognize, that under Art. I, 8, cl. 4, of the Constitution, Congress has possessed the power to establish "uniform Laws on the subject of Bankruptcies throughout the United States"; that, of course, this power, when exercised, as it has been since 1800, is "exclusive," New Lamp Chimney and "unrestricted and paramount," International Shoe ; that one of the purposes of the Bankruptcy Act is to "relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh" ; and that a bankrupt by his discharge receives "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre&emul;xisting debt," Local Loan From these general and accepted principles it is argued that 28-1163 with its insistence upon post-discharge payment as a condition for license and registration restoration, is violative of the Bankruptcy Act and, thus, of the Supremacy As Mr. Perez acknowledges in his brief here, the argument is not new. It was raised with respect to a New York statute in and was rejected there by a five-to-four vote: "The use of the public by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees * and to protect others using the highway is consonant with due process. "The penalty which 94-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety." -37. Left specifically unanswered in that but acknowledged as a "serious question," was the claim that interim amendments of the statutes gave the creditor control over the initiation and duration of the suspension and thus violated the Bankruptcy Act. The dissenters, speaking through MR. JUSTICE DOUGLAS, concluded that that constitutional issue "cannot be escaped. unless we are to overlook the realities of collection methods." Nine years ago, the same argument again was advanced, this time with respect to Utah's Motor Vehicle Safety Responsibility Act, and again was rejected. There, Utah's provisions relating to duration of suspension and restoration, more stringent than those of New York, were challenged. It was claimed that the statutes made the State a "collecting agent for the creditor rather than furthering an interest in highway safety," *662 and that suspension that could be perpetual "only renders the collection pressure more effective." 369 U.S., There was a troublesome jurisdictional issue in the the decision as to which was later overruled, Swift & but on the merits the Court, by a five-to-three vote, sustained all the Utah statutes then under attack:[4] "But the lesson Zavelo [v. Reeves, ] and Spalding [v. New York ex rel. Backus, ] teach is that the Bankruptcy Act does not forbid a State to attach any consequence whatsoever to a debt which has been discharged. "The Utah Safety Responsibility Act leaves the bankrupt to some extent burdened by the discharged debt. Certainly some inroad is made on the consequences of bankruptcy if the creditor can exert pressure to recoup a discharged debt, or part of it, through the leverage of the State's licensing and registration power. But the exercise of this power is deemed vital to the State's well-being, and, from the point of view of its interests, is wholly unrelated to the considerations which propelled Congress to enact a national bankruptcy law. There are here overlapping interests which cannot be uncritically resolved by exclusive regard to the money consequences of enforcing a widely adopted measure for safeguarding life and safety. ". At the heart of the matter are the complicated demands of our federalism. "Are the differences between the Utah statute and *663 that of New York so significant as to make a constitutionally decisive difference? A State may properly decide, as forty-five have done, that the prospect of a judgment that must be paid in order to regain driving privileges serves as a substantial deterrent to unsafe driving. We held in Reitz that it might impose this requirement despite a discharge, in order not to exempt some drivers from appropriate protection of public safety by easy refuge in bankruptcy. To whatever extent these provisions make it more probable that the debt will be paid despite the discharge, each no less reflects the State's important deterrent interest. Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia; we do not believe Utah's identical statute conflicts with it either. "Utah is not using its police power as a devious collecting agency under the pressure of organized creditors. Victims of careless car drivers are a wholly diffused group of shifting and uncertain composition, not even remotely united by a common financial interest. The Safety Responsibility Act is not an Act for the Relief of Mulcted Creditors. It is not directed to bankrupts as such. Though in a particular a discharged bankrupt who wants to have his rightfully suspended license and registration restored may have to pay the amount of a discharged debt, or part of it, the bearing of the statute on the purposes served by bankruptcy legislation is essentially tangential." -174 MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, dissented on the ground that Utah Code Ann. 41-12-15 (1953), essentially identical to Arizona's 28-1163 *664 operated to deny the judgment debtor the federal immunity given him by 17 of the Bankruptcy Act and, hence, violated the Supremacy -185. The Perezes in their brief, p. 7, acknowledge that the Arizona statutes challenged here "are not unlike the Utah ones discussed in" Accordingly, Adolfo Perez is forced to urge that Reitz and the remaining portion of that bears upon the subject be overruled. The Court bows to that argument. I am not prepared to overrule those two s and to undermine their control over Adolfo Perez' posture here. I would adhere to the rulings and I would hold that the States have an appropriate and legitimate concern with highway safety; that the means Arizona has adopted with respect to one in Adolfo's position (that is, the driver whose negligence has caused harm to others and whose judgment debt based on that negligence remains unsatisfied) in its attempt to assure driving competence and care on the part of its licensees, as well as to protect others, is appropriate state legislation; and that the Arizona statute, like its Utah counterpart, despite the tangential effect upon bankruptcy, does not operate in derogation of the Bankruptcy Act or conflict with it to the extent it may rightly be said to violate the Supremacy Other factors of significance are also to be noted: 1. The Court struggles to explain away the parallel District of Columbia situation installed by Congress itself. Section 40-464 of the D. C. Code Ann. in all pertinent parts is identical with Arizona's 28-1163 The only difference is in the final word, namely, "article" in the Arizona statute and "chapter" in the District's. The District of Columbia statute was enacted as 48 of Pub. Law 365 of May 25, 1954, effective one year later, This is long after the Bankruptcy Act *665 was placed on the books and, indeed, long after this Court's decision in that a personal injury judgment is a provable claim in bankruptcy. Surely, as the Court noted in 369 U. S., -174, "Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia." See Congress must have regarded the two statutes as consistent and compatible, and cannot have thought otherwise for the last 35 years.[5] If the statutes truly are in tension, then I would suppose that the later one, that is, 40-464, would be the one to prevail. But, if so, we then have something less than the "uniform Laws on the subject of Bankruptcies throughout the United States" that Art. I, 8, cl. 4, of the Constitution commands, for the law would be one way in Arizona (and, by the present overruling of Reitz and in New York and in Utah) and the other way in the District of Columbia. Unfortunately, such is the dilemma in which the Court's decision today leaves us. 2. Arizona's 28-1163 also has its counterparts in the statutes of no less than 44 other States.[6] It is, after * all, or purports to be, a uniform Act. I suspect the Court's decision today will astonish those members of the Congress who were responsible for the District of Columbia Code provision, and will equally astonish the legislatures of those 44 States that absorbed assurance from Reitz and that the provision withstands constitutional attack. 3. The Court rationalizes today's decision by saying that went beyond Reitz and that the present goes beyond and that that is too much. It would justify this by noting the Arizona Supreme Court's characterization of the Arizona statute as one for the protection of the public from financial hardship and by concluding, *6 from this description, that the statute is not a public highway safety measure, but rather a financial one protective, I assume the implication is, of insurance companies. The Arizona court's characterization of its statute, I must concede, is not a fortunate one. However, I doubt that that court, in evolving that description, had any idea of the consequences to be wrought by this Court's decision today. I am not willing to say that the description in embraced the only purpose of the State's legislation. Section 28-1163 is a part of the State's Motor Vehicle Safety Responsibility Act and does not constitute an isolated subchapter of that Act concerned only with financial well-being of the victims of drivers' negligence. In any event, as the Court's opinion makes clear, the decision today would be the same however the Arizona court had described its statute. 4. While stare decisis "is no immutable principle,"[7] as a glance at the Court's decisions over the last 35 years, or over almost any period for that matter, will disclose, it seems to me that the principle does have particular validity and application in a situation such as the one confronting the Court in this Here is a statute concerning motor vehicle responsibility, a substantive matter peculiarly within the competence of the State rather than the National Government. Here is a serious and conscientious attempt by a State to legislate and do something about the problem that, in terms of death and bodily injury and adverse civilian effect, is so alarming. Here is a statute widely adopted by the several States and legitimately assumed by the lawmakers of those States to be consistent with the Bankruptcy Act, an assumption rooted in positive, albeit divided, decision *668 by this Court, not once, but twice. And here is a statute the Congress itself, the very author of the Bankruptcy Act, obviously considered consistent therewith. I fear that the Court today makes stare decisis meaningless and downgrades it to the level of a tool to be used or cast aside as convenience dictates. I doubt if Justices Stone, Reed, Frankfurter, Murphy, Warren, Clark, HARLAN, BRENNAN, and STEWART, who constituted the respective majorities on the merits in Reitz and were all that wrong. 5. Adolfo's affidavit protestation of hardship goes no further than to assert a resulting reliance upon friends and neighbors or upon public transportation or upon walking to cover the seven miles from his home to his place of work; this is inconvenience, perhaps, even in this modern day when we are inclined to equate convenience with necessity and to eschew what prior generations routinely accepted as part of the day's labor, but it falls far short of the "great harm" and "irreparable injury" that he otherwise asserts only in general and conclusory terms. Perez' professed inconvenience stands vividly and starkly in contrast with his victims' injuries. But as is so often the the victim, once damaged, is seemingly beyond concern. What seems to become important is the perpetrator's inconvenience. 6. It is conceded that Arizona constitutionally could prescribe liability insurance as a condition precedent to the issuance of a license and registration. V Emma Perez Emma Perez' posture is entirely different. Except for possible emotional strain resulting from her husband's predicament, she was in no way involved in the Pinkerton accident. She was not present when it occurred and no negligence or nonfeasance on her part contributed to it. *669 Emma thus finds herself in a position where, having done no wrong, she nevertheless is deprived of her operator's license. This comes about because the Perez vehicle concededly was community property under 25-211 and because, for some reason, the judgment was confessed as to her as well as against her husband. As one amicus brief describes it, Emma, a fault-free driver, "is without her license solely because she is the impecunious wife of an impecunious, negligent driver in a community property state." At this point a glance at the Arizona community property system perhaps is indicated. Emma Perez was a proper nominal defendant in the Pinkerton lawsuit, see 3 P.2d 245 but she was not a necessary party there. First National ; However, a judgment against a marital community based upon the husband's tort committed without the wife's knowledge or consent does not bind her separate property. (19). The judgment would, of course, bind the community property vehicle to the extent permitted by Arizona law. See 33-1124. In Arizona during coverture personal property may be disposed of only by the husband. 25-211 The community personalty is subject to the husband's dominance in management and control. The wife has no power to make contracts binding the common property. 25-214 Her power to contract is limited to necessaries for herself and the children. 25-215. Thus, as the parties appear to agree, she could neither enter into a contract for the purchase of an automobile nor acquire insurance upon it except by use of her separate property. *0 The Court of Appeals ruled that Mrs. Perez' posture, as the innocent wife who had no connection with the negligent conduct that led to the confession and entry of judgment, was, under the logic of and Reitz, "a distinction without a significant difference" even though "she had no alternative." The court opined that the spouse can acquire an automobile with her separate funds and that negligent operation of it on separate business would then not call into question the liability of the other spouse. It described Emma's legal status as "closely analogous" to that of the automobile owner who permits another person to drive, and it regarded as authority s upholding a State's right to revoke the owner's license and registration after judgment had been entered against him and remains unsatisfied. The husband was described, under Arizona law, as the managing agent of the wife in the control of the community automobile, and "the driver's licenses of both husband and wife are an integral part of the ball of wax, which is the basis of the Arizona community property laws." The loss of her license "is the price an Arizona wife must pay for negligent driving by her husband of the community vehicle" when the resulting judgment is not paid. For what it is worth, Emma's affidavit is far more persuasive of hardship than Adolfo's. She relates the family automobile to the children and their medical needs and to family purchasing at distant discount stores. But I need not, and would not, decide her on the representations in her affidavit. I conclude that the reasoning of the Court of Appeals, in its application to Emma Perez and her operator's license, does not comport with the purpose and policy of the Bankruptcy Act and that it effects a result at odds with the Supremacy Emma's subordinate *1 position with respect to the community's personal property, and her complete lack of connection with the Pinkerton accident and with the negligence that occasioned it, are strange accompaniments for the deprival of her operator's license. The nexus to the state police power, claimed to exist because of her marriage to the negligent Adolfo and the community property character of the accident vehicle, is, for me, elusive and unconvincing. The argument based on Arizona's appropriate concern with highway safety, that prompts me to adhere to the Reitz- rationale for Adolfo, is drained of all force and persuasion when applied to the innocent Emma. Despite the underlying community property legal theory, Emma had an incident of ownership in the family automobile only because it was acquired during coverture. She had no "control" over Adolfo's use of the vehicle and she could not forbid his use as she might have been able to do were it her separate property. Thus, the state purpose in deterring the reckless driver and his unsafe driving has only undeserved punitive application to Emma. She is personally penalized not only with respect to the operation of the Perez car but also with respect to any automobile. I therefore would hold that under these circumstances the State's action, under 28-1163 in withholding from Emma her operator's license is not, within the language of Reitz, an appropriate means for Arizona "to insure competence and care on the part of [Emma] and to protect others" using the and that it interferes with the paramount federal interest in her bankruptcy discharge and violates the Supremacy [For Appendix to opinion of BLACKMUN, J., see post, p. 2.] *2

Justice Sotomayor

majority

Lewis v. Clarke

https://www.courtlistener.com/opinion/4385683/lewis-v-clarke/

https://www.courtlistener.com/api/rest/v3/clusters/4385683/

2016-034

Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immu- nity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal em- ployee in state court under state law. We granted certio- rari to resolve whether an Indian tribe’s sovereign immu- nity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe. We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immu- nity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provi- sion does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and 2 LEWIS v. CLARKE Opinion of the Court remand. I A The Mohegan Tribe of Indians of Connecticut traces its lineage back centuries. Originally part of the Lenni Le- nape, the Tribe formed the independent Mohegan Tribe under the leadership of Sachem Uncas in the early 1600’s. M. Fawcett, The Lasting of the Mohegans 7, 11–13 (1995). In 1994, in accordance with the petition procedures estab- lished by the Bureau of Indian Affairs, the Tribe attained federal recognition.1 See 59 Fed. Reg. 12140 (1994); Mohegan Const., Preamble and Art. II. As one means of maintaining its economic self- sufficiency, the Tribe entered into a Gaming Compact with the State of Connecticut pursuant to the Indian Gaming Regulatory Act, 102 Stat. 2467, 25 U.S. C. §2701 et seq. The compact authorizes the Tribe to conduct gaming on its land, subject to certain conditions including establishment of the Gaming Disputes Court. See 59 Fed. Reg. 65130 (approving the Tribal-State Compact Between the Mohe- gan Indian Tribe and the State of Connecticut (May 17, 1994)); Mohegan Const., Art. XIII, §2; Mohegan Tribe Code 3–248(a) (Supp. 2016). The Mohegan Tribal Gaming Authority, an arm of the Tribe, exercises the powers of the Mohegan Tribe over tribal gaming activities. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §2–21. Of particular relevance here, Mohegan law sets out —————— 1 There are currently 567 federally recognized Indian and Alaska Native entities. 81 Fed. Reg. 26826–26832 (2016); see also Native Hawaiian Law: A Treatise 303–324 (M. MacKenzie ed. 2015) (discuss- ing the existing relationships between the U. S. Government and federally recognized tribes and other indigenous groups in the United States); F. Cohen, Handbook of Federal Indian Law §§1.01–1.07 (2012 and Supp. 2015); V. Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979 (1999). Cite as: 581 U. S. ____ (2017) 3 Opinion of the Court sovereign immunity and indemnification policies applica- ble to disputes arising from gaming activities. The Gam- ing Authority has waived its sovereign immunity and consented to be sued in the Mohegan Gaming Disputes Court. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §3–250(b). Neither the Tribe nor the Gaming Au- thority has consented to suit for claims arising under Connecticut state law. See Mohegan Const., Art. IX, §2(t); Mohegan Tribe Code §3–250(g); see also Blatchford v. Native Village of Noatak, 501 U.S. 775, 782 (1991) (ob- serving that Indian tribes have not surrendered their immunity against suits by States). Further, Mohegan Tribe Code §4–52 provides that the Gaming Authority “shall save harmless and indemnify its Officer or Em- ployee from financial loss and expense arising out of any claim, demand, or suit by reason of his or her alleged negligence . . . if the Officer or Employee is found to have been acting in the discharge of his or her duties or within the scope of his or her employment.” The Gaming Author- ity does not indemnify employees who engage in “wanton, reckless or malicious” activity. Mohegan Tribe Code §4–52. B Petitioners Brian and Michelle Lewis were driving down Interstate 95 in Norwalk, Connecticut, when a limousine driven by respondent William Clarke hit their vehicle from behind. Clarke, a Gaming Authority employee, was transporting patrons of the Mohegan Sun Casino to their homes. For purposes of this appeal, it is undisputed that Clarke caused the accident. The Lewises filed suit against Clarke in his individual capacity in Connecticut state court, and Clarke moved to dismiss for lack of subject-matter jurisdiction on the basis of tribal sovereign immunity. See 2014 WL 5354956, *2 (Super. Ct. Conn., Sept. 10, 2014) (Cole-Chu, J.). Clarke 4 LEWIS v. CLARKE Opinion of the Court argued that because the Gaming Authority, an arm of the Tribe, was entitled to sovereign immunity, he, an employee of the Gaming Authority acting within the scope of his employment at the time of the accident, was similarly entitled to sovereign immunity against suit. According to Clarke, denying the motion would abrogate the Tribe’s sovereign immunity. The trial court denied Clarke’s motion to dismiss. Id., at *8. The court agreed with the Lewises that the sovereign immunity analysis should focus on the remedy sought in their complaint. To that end, the court identified Clarke, not the Gaming Authority or the Tribe, as the real party in interest because the damages remedy sought was solely against Clarke and would in no way affect the Tribe’s ability to govern itself independently. The court therefore concluded that tribal sovereign immunity was not impli- cated. Id., at *2–*8. It also rejected Clarke’s alternative argument that because the Gaming Authority was obligated to indemnify him pursuant to Mohegan Tribe Code §4–52 and would end up paying the damages, he should prevail under the remedy analysis. Id., at *7. The trial court reasoned that a “voluntary undertaking cannot be used to extend sovereign immunity where it did not otherwise exist.” Ibid. The Supreme Court of Connecticut reversed, holding that tribal sovereign immunity did bar the suit. 320 Conn. 706, 135 A.3d 677 (2016). The court agreed with Clarke that “because he was acting within the scope of his em- ployment for the Mohegan Tribal Gaming Authority and the Mohegan Tribal Gaming Authority is an arm of the Mohegan Tribe, tribal sovereign immunity bars the plain- tiffs’ claims against him.” Id., at 709, 135 A. 3d, at 680. Of particular significance to the court was ensuring that “plaintiffs cannot circumvent tribal immunity by merely naming the defendant, an employee of the tribe, when the complaint concerns actions taken within the scope of his Cite as: 581 U. S. ____ (2017) 5 Opinion of the Court duties and the complaint does not allege, nor have the plaintiffs offered any other evidence, that he acted outside the scope of his authority.” Id., at 720, 135 A. 3d, at 685. To do otherwise, the court reasoned, would “ ‘eviscerate’ ” the protections of tribal immunity. Id., at 717, 135 A. 3d, at 684 (alterations and internal quotation marks omitted). Because the court determined that Clarke was entitled to sovereign immunity on the sole basis that he was acting within the scope of his employment when the accident occurred, id., at 720, 135 A.3d, at 685–686, it did not consider whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We granted certiorari to consider whether tribal sover- eign immunity bars the Lewises’ suit against Clarke, 579 U. S. ___ (2016), and we now reverse the judgment of the Supreme Court of Connecticut. II Two issues require our resolution: (1) whether the sov- ereign immunity of an Indian tribe bars individual- capacity damages against tribal employees for torts com- mitted within the scope of their employment; and (2) what role, if any, a tribe’s decision to indemnify its employees plays in this analysis. We decide this case under the framework of our precedents regarding tribal immunity. A Our cases establish that, in the context of lawsuits against state and federal employees or entities, courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign. See, e.g., Ex parte 6 LEWIS v. CLARKE Opinion of the Court New York, 256 U.S. 490, 500–502 (1921). If, for example, an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amend- ment’s protection. For this reason, an arm or instrumen- tality of the State generally enjoys the same immunity as the sovereign itself. E.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429–430 (1997). Similarly, lawsuits brought against employees in their official capacity “repre- sent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity. Kentucky v. Graham, 473 U.S. 159, 165–166 (1985) (internal quotation marks omitted). The distinction between individual- and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Dugan v. Rank, 372 U.S. 609, 611, 620–622 (1963). This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. Hafer, 502 U.S., at 25. The real party in interest is the government entity, not the named official. See Edelman v. Jordan, 415 U.S. 651, 663–665 (1974). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a govern- ment officer for actions taken under color of state law.” Hafer, 502 U.S., at 25 (emphasis added); see also id., at 27–31 (discharged employees entitled to bring personal damages action against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). “[O]fficers sued in their personal capacity come to court as individuals,” Hafer, 502 U.S., at 27, and the real party in interest is the individual, not the sovereign. The identity of the real party in interest dictates what Cite as: 581 U. S. ____ (2017) 7 Opinion of the Court immunities may be available. Defendants in an official- capacity action may assert sovereign immunity. Graham, 473 U.S., at 167. An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prose- cutorial immunity in certain circumstances. Van de Kamp v. Goldstein, 555 U.S. 335, 342–344 (2009). But sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.” Hafer, 502 U.S., at 30– 31 (internal quotation marks omitted); see Alden v. Maine, 527 U.S. 706, 757 (1996). B There is no reason to depart from these general rules in the context of tribal sovereign immunity. It is apparent that these general principles foreclose Clarke’s sovereign immunity defense in this case. This is a negligence action arising from a tort committed by Clarke on an interstate highway within the State of Connecticut. The suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment will not operate against the Tribe. This is not a suit against Clarke in his official capacity. It is simply a suit against Clarke to recover for his personal actions, which “will not require action by the sovereign or disturb the sovereign’s property.” Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 687 (1949). We are cognizant of the Supreme Court of Connecticut’s con- cern that plaintiffs not circumvent tribal sovereign im- munity. But here, that immunity is simply not in play. Clarke, not the Gaming Authority, is the real party in interest. In ruling that Clarke was immune from this suit solely because he was acting within the scope of his employment, the court extended sovereign immunity for tribal employ- ees beyond what common-law sovereign immunity princi- 8 LEWIS v. CLARKE Opinion of the Court ples would recognize for either state or federal employees. See, e.g., Graham, 473 U.S., at 167–168. The protection offered by tribal sovereign immunity here is no broader than the protection offered by state or federal sovereign immunity. Accordingly, under established sovereign immunity principles, the Gaming Authority’s immunity does not, in these circumstances, bar suit against Clarke.2 III The conclusion above notwithstanding, Clarke argues that the Gaming Authority is the real party in interest here because it is required by Mohegan Tribe Code §4–52 to indemnify Clarke for any adverse judgment.3 A We have never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity. We hold that an indemnification —————— 2 There are, of course, personal immunity defenses distinct from sov- ereign immunity. E.g., Harlow v. Fitzgerald, 457 U.S. 800, 811–815 (1982). Clarke argues for the first time before this Court that one particular form of personal immunity is available to him here—official immunity. See Westfall v. Erwin, 484 U.S. 292, 295–297 (1988). That defense is not properly before us now, however, given that Clarke’s motion to dismiss was based solely on tribal sovereign immunity. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U.S. 443, 455 (2007). 3 As noted above, the Supreme Court of Connecticut did not reach whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We nevertheless consider the issue fairly included within the question presented, as it is a purely legal question that is an integral part of Clarke’s sovereign immunity argu- ment and that was both raised to and passed on by the trial court. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[T]he purely legal question on which [petitioner’s] claim of immunity turns is appropriate for our immediate resolution notwithstanding that it was not addressed by the Court of Appeals” (internal quotation marks omitted)). Cite as: 581 U. S. ____ (2017) 9 Opinion of the Court provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. Our holding follows naturally from the principles dis- cussed above. Indeed, we have applied these same princi- ples to a different question before—whether a state in- strumentality may invoke the State’s immunity from suit even when the Federal Government has agreed to indem- nify that instrumentality against adverse judgments. In Regents of Univ. of Cal., an individual brought suit against the University of California, a public university of the State of California, for breach of contract related to his employ- ment at a laboratory operated by the university pursuant to a contract with the Federal Government. We held that the indemnification provision did not divest the state instrumentality of Eleventh Amendment immunity. 519 U.S., at 426. Our analysis turned on where the potential legal liability lay, not from whence the money to pay the damages award ultimately came. Because the lawsuit bound the university, we held, the Eleventh Amendment applied to the litigation even though the damages award would ultimately be paid by the federal Department of Energy. Id., at 429–431. Our reasoning remains the same. The critical inquiry is who may be legally bound by the court’s adverse judgment, not who will ultimately pick up the tab.4 Here, the Connecticut courts exercise no jurisdiction over the Tribe or the Gaming Authority, and their judg- ments will not bind the Tribe or its instrumentalities in —————— 4 Our holding in Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994), is not to the contrary. There the immunity ques- tion turned on whether the Port Authority Trans-Hudson Corporation was a state agency cloaked with Eleventh Amendment immunity such that any judgment “must be paid out of a State’s treasury.” Id., at 48, 51–52 (emphasis added). Here, unlike in Hess, the damages judgment would not come from the sovereign. 10 LEWIS v. CLARKE Opinion of the Court any way. The Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individ- ual capacity, he is held responsible only for his individual wrongdoing. Moreover, indemnification is not a certainty here. Clarke will not be indemnified by the Gaming Au- thority should it determine that he engaged in “wanton, reckless, or malicious” activity. Mohegan Tribe Code §4– 52. That determination is not necessary to the disposition of the Lewises’ suit against Clarke in the Connecticut state courts, which is a separate legal matter. B Clarke notes that courts have extended sovereign im- munity to private healthcare insurance companies under certain circumstances. See, e.g., Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71–72 (CA2 1998); Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F.2d 1073, 1074–1075 (CADC 1973); Brief for Respondent 19, n. 4. But, these cases rest on the proposition that the fiscal intermediaries are essentially state instrumentali- ties, as the governing regulations make clear. See 42 CFR §421.5(b) (2016) (providing that the Medicare Administra- tor “is the real party of interest in any litigation involving the administration of the program”). It is well established in our precedent that a suit against an arm or instrumen- tality of the State is treated as one against the State itself. See Regents of Univ. of Cal., 519 U.S., at 429. We have not before treated a lawsuit against an individual em- ployee as one against a state instrumentality, and Clarke offers no persuasive reason to do so now. Nor have we ever held that a civil rights suit under 42 U.S. C. §1983 against a state officer in his individual capacity implicates the Eleventh Amendment and a Cite as: 581 U. S. ____ (2017) 11 Opinion of the Court State’s sovereign immunity from suit.5 Federal appellate courts that have considered the indemnity question have rejected the argument that an indemnity statute brings the Eleventh Amendment into play in §1983 actions. See, e.g., Stoner v. Wisconsin Dept. of Agriculture, Trade and Consumer Protection, 50 F.3d 481, 482–483 (CA7 1995); Blalock v. Schwinden, 862 F.2d 1352, 1354 (CA9 1988); Duckworth v. Franzen, 780 F.2d 645, 650 (CA7 1985). These cases rely on the concern that originally drove the adoption of the Eleventh Amendment—the protection of the States against involuntary liability. See Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 39, 48 (1994). But States institute indemnification policies vol- untarily. And so, indemnification provisions do not impli- cate one of the underlying rationales for state sovereign immunity—a government’s ability to make its own deci- sions about “the allocation of scarce resources.” Alden, 527 U.S., at 751. Finally, our conclusion that indemnification provisions do not alter the real-party-in-interest analysis for purposes of sovereign immunity is consistent with the practice that applies in the contexts of diversity of citizenship and joinder. In assessing diversity jurisdiction, courts look to the real parties to the controversy. Navarro Savings Assn. v. Lee, 446 U.S. 458, 460 (1980). Applying this principle, courts below have agreed that the fact that a third party indemnifies one of the named parties to the case does not, as a general rule, influence the diversity analysis. See, e.g., Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 865 (CA5 2003); E. R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 936–937 (CA2 1998). They have similarly held that a party does not become a required party for joinder purposes under Federal Rule of Civil —————— 5 A suit against a state officer in his official, rather than individual, capacity might implicate the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 165–166 (1985). 12 LEWIS v. CLARKE Opinion of the Court Procedure 19 simply by virtue of indemnifying one of the named parties. See, e.g., Gardiner v. Virgin Islands Water & Power Auth., 145 F.3d 635, 641 (CA3 1998); Rochester Methodist Hospital v. Travelers Ins. Co., 728 F.2d 1006, 1016–1017 (CA8 1984). In sum, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities. An indemnification statute such as the one at issue here does not alter the analysis. Clarke may not avail himself of a sovereign immunity defense. IV The judgment of the Supreme Court of Connecticut is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 581 U. S. ____ (2017) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 15–1500 _________________ BRIAN LEWIS, ET AL., PETITIONERS v. WILLIAM CLARKE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [April 25, 2017] JUSTICE THOMAS, concurring in the judgment.

Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immu- nity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal em- ployee in state court under state law. We granted certio- rari to resolve whether an Indian tribe’s sovereign immu- nity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe. We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immu- nity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provi- sion does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and 2 LEWIS v. CLARKE Opinion of the Court remand. I A The Mohegan Tribe of Indians of Connecticut traces its lineage back centuries. Originally part of the Lenni Le- nape, the Tribe formed the independent Mohegan Tribe under the leadership of Sachem Uncas in the early 1600’s. M. Fawcett, The Lasting of the Mohegans 7, 11–13 In 1994, in accordance with the petition procedures estab- lished by the Bureau of Indian Affairs, the Tribe attained federal recognition.1 See ; Mohegan Const., Preamble and Art. II. As one means of maintaining its economic self- sufficiency, the Tribe entered into a Gaming Compact with the State of Connecticut pursuant to the Indian Gaming Regulatory Act, U.S. C. et seq. The compact authorizes the Tribe to conduct gaming on its land, subject to certain conditions including establishment of the Gaming Disputes Court. See ); Mohegan Const., Art. XIII, Mohegan Tribe Code 3–248(a) The Mohegan Tribal Gaming Authority, an arm of the Tribe, exercises the powers of the Mohegan Tribe over tribal gaming activities. Mohegan Const., Art. XIII, Mohegan Tribe Code Of particular relevance here, Mohegan law sets out —————— 1 There are currently 567 federally recognized Indian and Alaska Native entities. –26832 ; see also Native Hawaiian Law: A Treatise 303–324 (M. MacKenzie ed. 2015) (discuss- ing the existing relationships between the U. S. Government and federally recognized tribes and other indigenous groups in the United States); F. Cohen, Handbook of Federal Indian Law (2012 and Supp. 2015); V. Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979 (1999). Cite as: 581 U. S. (2017) 3 Opinion of the Court sovereign immunity and indemnification policies applica- ble to disputes arising from gaming activities. The Gam- ing Authority has waived its sovereign immunity and consented to be sued in the Mohegan Gaming Disputes Court. Mohegan Const., Art. XIII, Mohegan Tribe Code Neither the Tribe nor the Gaming Au- thority has consented to suit for claims arising under Connecticut state law. See Mohegan Const., Art. IX, Mohegan Tribe Code see also Blatchford v. Native Village of Noatak, (ob- serving that Indian tribes have not surrendered their immunity against suits by States). Further, Mohegan Tribe Code provides that the Gaming Authority “shall save harmless and indemnify its Officer or Em- ployee from financial loss and expense arising out of any claim, demand, or suit by reason of his or her alleged negligence if the Officer or Employee is found to have been acting in the discharge of his or her duties or within the scope of his or her employment.” The Gaming Author- ity does not indemnify employees who engage in “wanton, reckless or malicious” activity. Mohegan Tribe Code B Petitioners Brian and Michelle Lewis were driving down Interstate 95 in Norwalk, Connecticut, when a limousine driven by respondent William Clarke hit their vehicle from behind. Clarke, a Gaming Authority employee, was transporting patrons of the Mohegan Sun Casino to their homes. For purposes of this appeal, it is undisputed that Clarke caused the accident. The Lewises filed suit against Clarke in his individual capacity in Connecticut state court, and Clarke moved to dismiss for lack of subject-matter jurisdiction on the basis of tribal sovereign immunity. See (Super. Ct. Conn., Sept. 10, 2014) (Cole-Chu, J.). Clarke 4 LEWIS v. CLARKE Opinion of the Court argued that because the Gaming Authority, an arm of the Tribe, was entitled to sovereign immunity, he, an employee of the Gaming Authority acting within the scope of his employment at the time of the accident, was similarly entitled to sovereign immunity against suit. According to Clarke, denying the motion would abrogate the Tribe’s sovereign immunity. The trial court denied Clarke’s motion to dismiss. at *8. The court agreed with the Lewises that the sovereign immunity analysis should focus on the remedy sought in their complaint. To that end, the court identified Clarke, not the Gaming Authority or the Tribe, as the real party in interest because the damages remedy sought was solely against Clarke and would in no way affect the Tribe’s ability to govern itself independently. The court therefore concluded that tribal sovereign immunity was not impli- cated. at –*8. It also rejected Clarke’s alternative argument that because the Gaming Authority was obligated to indemnify him pursuant to Mohegan Tribe Code and would end up paying the damages, he should prevail under the remedy analysis. The trial court reasoned that a “voluntary undertaking cannot be used to extend sovereign immunity where it did not otherwise exist.” The Supreme Court of Connecticut reversed, holding that tribal sovereign immunity did bar the suit. 320 Conn. 706, The court agreed with Clarke that “because he was acting within the scope of his em- ployment for the Mohegan Tribal Gaming Authority and the Mohegan Tribal Gaming Authority is an arm of the Mohegan Tribe, tribal sovereign immunity bars the plain- tiffs’ claims against him.” Of particular significance to the court was ensuring that “plaintiffs cannot circumvent tribal immunity by merely naming the defendant, an employee of the tribe, when the complaint concerns actions taken within the scope of his Cite as: 581 U. S. (2017) 5 Opinion of the Court duties and the complaint does not allege, nor have the plaintiffs offered any other evidence, that he acted outside the scope of his authority.” To do otherwise, the court reasoned, would “ ‘eviscerate’ ” the protections of tribal immunity. 135 A. 3d, at 684 (alterations and internal quotation marks omitted). Because the court determined that Clarke was entitled to sovereign immunity on the sole basis that he was acting within the scope of his employment when the accident occurred, –686, it did not consider whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We granted certiorari to consider whether tribal sover- eign immunity bars the Lewises’ suit against Clarke, 579 U. S. and we now reverse the judgment of the Supreme Court of Connecticut. II Two issues require our resolution: (1) whether the sov- ereign immunity of an Indian tribe bars individual- capacity damages against tribal employees for torts com- mitted within the scope of their employment; and (2) what role, if any, a tribe’s decision to indemnify its employees plays in this analysis. We decide this case under the framework of our precedents regarding tribal immunity. A Our cases establish that, in the context of lawsuits against state and federal employees or entities, courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit. See In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign. See, e.g., Ex parte 6 6 U.S. 490, If, for example, an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amend- ment’s protection. For this reason, an arm or instrumen- tality of the State generally enjoys the same immunity as the sovereign itself. E.g., Regents of Univ. of 519 U.S. 4, Similarly, lawsuits brought against employees in their official capacity “repre- sent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity. (internal quotation marks omitted). The distinction between individual- and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. 71 (1989); 620–622 (1963). This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. 502 U.S., at The real party in interest is the government entity, not the named official. See 663–665 (1974). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a govern- ment officer for actions taken under color of state law.” 502 U.S., at ; see also at 27–31 (discharged employees entitled to bring personal damages action against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics Agents, (1971). “[O]fficers sued in their personal capacity come to court as individuals,” and the real party in interest is the individual, not the sovereign. The identity of the real party in interest dictates what Cite as: 581 U. S. (2017) 7 Opinion of the Court immunities may be available. Defendants in an official- capacity action may assert sovereign immunity. An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prose- cutorial immunity in certain circumstances. Van de Kamp v. Goldstein, But sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.” – 31 (internal quotation marks omitted); see B There is no reason to depart from these general rules in the context of tribal sovereign immunity. It is apparent that these general principles foreclose Clarke’s sovereign immunity defense in this case. This is a negligence action arising from a tort committed by Clarke on an interstate highway within the State of Connecticut. The suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment will not operate against the Tribe. This is not a suit against Clarke in his official capacity. It is simply a suit against Clarke to recover for his personal actions, which “will not require action by the sovereign or disturb the sovereign’s property.” We are cognizant of the Supreme Court of Connecticut’s con- cern that plaintiffs not circumvent tribal sovereign im- munity. But here, that immunity is simply not in play. Clarke, not the Gaming Authority, is the real party in interest. In ruling that Clarke was immune from this suit solely because he was acting within the scope of his employment, the court extended sovereign immunity for tribal employ- ees beyond what common-law sovereign immunity princi- 8 LEWIS v. CLARKE Opinion of the Court ples would recognize for either state or federal employees. See, e.g., –168. The protection offered by tribal sovereign immunity here is no broader than the protection offered by state or federal sovereign immunity. Accordingly, under established sovereign immunity principles, the Gaming Authority’s immunity does not, in these circumstances, bar suit against Clarke.2 III The conclusion above notwithstanding, Clarke argues that the Gaming Authority is the real party in interest here because it is required by Mohegan Tribe Code to indemnify Clarke for any adverse judgment.3 A We have never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity. We hold that an indemnification —————— 2 There are, of course, personal immunity defenses distinct from sov- ereign immunity. E.g., 811–815 (1982). Clarke argues for the first time before this Court that one particular form of personal immunity is available to him here—official immunity. See That defense is not properly before us now, however, given that Clarke’s motion to dismiss was based solely on tribal sovereign immunity. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U.S. 443, 455 (2007). 3 As noted above, the Supreme Court of Connecticut did not reach whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We nevertheless consider the issue fairly included within the question presented, as it is a purely legal question that is an integral part of Clarke’s sovereign immunity argu- ment and that was both raised to and passed on by the trial court. See (“[T]he purely legal question on which [petitioner’s] claim of immunity turns is appropriate for our immediate resolution notwithstanding that it was not addressed by the Court of Appeals” (internal quotation marks omitted)). Cite as: 581 U. S. (2017) 9 Opinion of the Court provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. Our holding follows naturally from the principles dis- cussed above. Indeed, we have applied these same princi- ples to a different question before—whether a state in- strumentality may invoke the State’s immunity from suit even when the Federal Government has agreed to indem- nify that instrumentality against adverse judgments. In Regents of Univ. of an individual brought suit against the University of California, a public university of the State of California, for breach of contract related to his employ- ment at a laboratory operated by the university pursuant to a contract with the Federal Government. We held that the indemnification provision did not divest the state instrumentality of Eleventh Amendment immunity. 519 U.S., at 426. Our analysis turned on where the potential legal liability lay, not from whence the money to pay the damages award ultimately came. Because the lawsuit bound the university, we held, the Eleventh Amendment applied to the litigation even though the damages award would ultimately be paid by the federal Department of Energy. at 429–431. Our reasoning remains the same. The critical inquiry is who may be legally bound by the court’s adverse judgment, not who will ultimately pick up the tab.4 Here, the Connecticut courts exercise no jurisdiction over the Tribe or the Gaming Authority, and their judg- ments will not bind the Tribe or its instrumentalities in —————— 4 Our holding in is not to the contrary. There the immunity ques- tion turned on whether the Port Authority Trans-Hudson Corporation was a state agency cloaked with Eleventh Amendment immunity such that any judgment “must be paid out of a State’s treasury.” 51–52 Here, unlike in Hess, the damages judgment would not come from the sovereign. 10 LEWIS v. CLARKE Opinion of the Court any way. The Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individ- ual capacity, he is held responsible only for his individual wrongdoing. Moreover, indemnification is not a certainty here. Clarke will not be indemnified by the Gaming Au- thority should it determine that he engaged in “wanton, reckless, or malicious” activity. Mohegan Tribe Code 52. That determination is not necessary to the disposition of the Lewises’ suit against Clarke in the Connecticut state courts, which is a separate legal matter. B Clarke notes that courts have extended sovereign im- munity to private healthcare insurance companies under certain circumstances. See, e.g., ; Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F.2d 1073, 1074–1075 (CADC 1973); Brief for Respondent 19, n. 4. But, these cases rest on the proposition that the fiscal intermediaries are essentially state instrumentali- ties, as the governing regulations make clear. See 42 CFR (providing that the Medicare Administra- tor “is the real party of interest in any litigation involving the administration of the program”). It is well established in our precedent that a suit against an arm or instrumen- tality of the State is treated as one against the State itself. See Regents of Univ. of We have not before treated a lawsuit against an individual em- ployee as one against a state instrumentality, and Clarke offers no persuasive reason to do so now. Nor have we ever held that a civil rights suit under 42 U.S. C. against a state officer in his individual capacity implicates the Eleventh Amendment and a Cite as: 581 U. S. (2017) 11 Opinion of the Court State’s sovereign immunity from suit.5 Federal appellate courts that have considered the indemnity question have rejected the argument that an indemnity statute brings the Eleventh Amendment into play in actions. See, e.g., ; ; These cases rely on the concern that originally drove the adoption of the Eleventh Amendment—the protection of the States against involuntary liability. See But States institute indemnification policies vol- untarily. And so, indemnification provisions do not impli- cate one of the underlying rationales for state sovereign immunity—a government’s ability to make its own deci- sions about “the allocation of scarce resources.” Alden, 527 U.S., at 751. Finally, our conclusion that indemnification provisions do not alter the real-party-in-interest analysis for purposes of sovereign immunity is consistent with the practice that applies in the contexts of diversity of citizenship and joinder. In assessing diversity jurisdiction, courts look to the real parties to the controversy. Navarro Savings Assn. v. Lee, Applying this principle, courts below have agreed that the fact that a third party indemnifies one of the named parties to the case does not, as a general rule, influence the diversity analysis. See, e.g., (CA5 2003); E. R. Squibb & Sons, 160 F.3d 9, They have similarly held that a party does not become a required party for joinder purposes under Federal Rule of Civil —————— 5 A suit against a state officer in his official, rather than individual, capacity might implicate the Eleventh Amendment. See Kentucky v. 12 LEWIS v. CLARKE Opinion of the Court Procedure 19 simply by virtue of indemnifying one of the named parties. See, e.g., ; Rochester Methodist 1016–1017 (CA8 1984). In sum, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities. An indemnification statute such as the one at issue here does not alter the analysis. Clarke may not avail himself of a sovereign immunity defense. IV The judgment of the Supreme Court of Connecticut is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 581 U. S. (2017) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 15–1500 BRIAN LEWIS, ET AL., PETITIONERS v. WILLIAM CLARKE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [April 2017] JUSTICE THOMAS, concurring in the judgment.

per_curiam

per_curiam

Rushen v. Spain

https://www.courtlistener.com/opinion/111051/rushen-v-spain/

https://www.courtlistener.com/api/rest/v3/clusters/111051/

1983-011

Respondent was one of six inmates involved in a 1971 San Quentin Prison escape that resulted in the death of three prisoners and three corrections officers. The State of California jointly tried respondent and five other prisoners on numerous charges, including murder, conspiracy, and assault. The prosecution attempted to show that the Black Panther Party had organized the escape attempt and to link respondent to the conspiracy through his membership in that Party. Respondent's defense was that state police had organized the breakout and ambushed the escapees to eliminate an important faction of the Black Panther Party. During voir dire, the court admonished prospective jurors to reveal their associations, if any, with crimes of violence and their attitudes toward radical groups, including the Black Panthers. Patricia Fagan, who became a juror, testified at voir dire that she had no personal knowledge of violent crimes — as a witness, victim, or otherwise — and that she did not associate the Black Panther Party with any form of violence. However, in the course of the 17-month-long trial, evidence was introduced of a crime, unrelated to those at issue in respondent's trial, of which juror Fagan had some knowledge. A defense witness identified a Black Panther named Pratt as a police informant involved in the alleged *116 police plot. The prosecution sought to impeach this witness by introducing evidence that Pratt was in custody for the 1968 murder of a Santa Monica woman during the entire period at issue. This evidence triggered juror Fagan's recollection of the murder of a childhood friend, who was the woman Pratt had been convicted of killing. Upon hearing the evidence about Pratt, juror Fagan twice went to the trial judge's chambers to tell him of her personal acquaintance with Pratt's 1968 murder victim. She told him that she feared that she might cry if the 1968 murder were explored further at trial. The judge asked her on each occasion whether her disposition of the case would be affected. She assured him that it would not. The judge told her not to be concerned and that the matter probably would not be mentioned again. He made no record of either conversation, and he did not inform the defendants or their counsel about them. At the close of trial, the jury found respondent guilty of two counts of murder and of conspiracy to escape, and acquitted him of the remaining charges. The jury also convicted two other defendants of assault, and found insufficient evidence to support the numerous remaining charges. Respondent was sentenced to life imprisonment. Counsel for respondent subsequently learned of the ex parte communications between judge and juror and moved for a new trial. At a hearing on the motion, juror Fagan testified that she had not remembered her friend's death during voir dire and that her subsequent recollection did not affect her ability impartially to judge respondent's innocence or guilt. She admitted telling other jurors that she personally knew Pratt's 1968 murder victim, but denied making any disparaging remarks about the Black Panther Party. The trial judge concluded that the ex parte communications "lacked any significance" and that respondent suffered no prejudice therefrom. See App. C to Pet. for Cert. 22. Accordingly, he denied the motion for new trial. *117 The California Court of Appeal affirmed the conviction. It found the ex parte communication to be federal constitutional error that was harmless "beyond a reasonable doubt" because the jury's deliberations, as a whole, were unbiased. Id., at 28-35. The California Supreme Court denied review. Respondent then petitioned for a writ of habeas corpus in Federal District Court. The District Court issued the writ, ruling that the ex parte communications between judge and juror violated both respondent's right to be present during all critical stages of the proceedings and his right to be represented by counsel. 543 F. Supp. 757 (ND Cal. 1982). Furthermore, the District Court held that automatic reversal was necessary because the absence of a contemporaneous record made intelligent application of the harmless-error standard impossible. Alternatively, it concluded that a post-trial hearing could not establish that the constitutional error was harmless beyond a reasonable doubt. Thus, it found that respondent's conviction had to be vacated because of the state court's failure to hold a contemporaneous hearing about, or to make a contemporaneous record of, the ex parte communication. The Court of Appeals for the Ninth Circuit affirmed on the basis that an unrecorded ex parte communication between trial judge and juror can never be harmless error.[1] Judgment order reported at 701 F.2d 186 (1983). We emphatically disagree. Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant.[2] "At the same time and without detracting from *118 the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving society's interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered . . . and should not unnecessarily infringe on competing interests." United States v. Morrison, 449 U.S. 361, 364 (1981); see also Rogers v. United States, 422 U.S. 35, 38-40 (1975). In this spirit, we have previously noted that the Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217 (1982). There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal *119 courts' conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society's interest in the administration of criminal justice.[3] This is not to say that ex parte communications between judge and juror are never of serious concern or that a federal court on habeas may never overturn a conviction for prejudice resulting from such communications. When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.[4] The prejudicial effect of a failure to do so, however, can normally be determined by a post-trial hearing. The adequacy of any remedy is determined solely by its ability *120 to mitigate constitutional error, if any, that has occurred. See, e. g., United States v. Morrison, supra, at 365; Rogers v. United States, supra, at 40. Post-trial hearings are adequately tailored to this task. See, e. g., Smith v. Phillips, supra, at 218-219, and n. 8; Remmer v. United States, 347 U.S. 227, 230 (1954). The final decision whether the alleged constitutional error was harmless is one of federal law. Chapman v. California, 386 U.S. 18, 20-21 (1967). Nevertheless, the factual findings arising out of the state courts' post-trial hearings are entitled to a presumption of correctness. See 28 U.S. C. § 2254(d); Sumner v. Mata, 449 U.S. 539 (1981). The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this presumption. Thus, they must be determined, in the first instance, by state courts and deferred to, in the absence of "convincing evidence" to the contrary, by the federal courts. See Marshall v. Lonberger, 459 U.S. 422, 431-432 (1983). Here, both the State's trial and appellate courts concluded that the jury's deliberations, as a whole, were not biased. This finding of "fact" — on a question the state courts were in a far better position than the federal courts to answer — deserves a "high measure of deference," Sumner v. Mata, 455 U.S. 591, 598 (1982), and may be set aside only if it "lack[s] even `fair support' in the record." Marshall v. Lonberger, 459 U. S., at 432. The absence of a contemporaneous recording will rarely deprive the finding of "even `fai[r] suppor[t]' in the record." See ibid. The post-trial hearing in this case created more than adequate support for the conclusion that juror Fagan's presence on the jury did not prejudice respondent. The 1968 murder was not related to the crimes at issue in the trial. Pratt was not connected to any of the offenses for which respondent was convicted, and he did not testify at the trial. Juror Fagan never willfully concealed her association with the Santa Monica crime, and she repeatedly testified that, upon *121 recollection, the incident did not affect her impartiality.[5] She turned to the most natural source of information — the trial judge — to disclose the information she should have recalled but failed to recall during voir dire. Their ex parte communication was innocuous. They did not discuss any fact in controversy or any law applicable to the case. The judge simply assured her that there was no cause for concern. Thus, the state courts had convincing evidence that the jury's deliberations, as a whole, were not biased by the undisclosed communication of juror Fagan's recollection. The lower federal courts should have deferred to this presumptively correct state-court finding and therefore should have found the alleged constitutional error harmless beyond a reasonable doubt.[6] *122 Accordingly, we grant the motion of respondent for leave to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE BRENNAN dissents from this summary disposition. He would grant the petition for certiorari and set the case for oral argument. JUSTICE STEVENS, concurring in the judgment.

Respondent was one of six inmates involved in a 1971 San Quentin Prison escape that resulted in the death of three prisoners and three corrections officers. The State of California jointly tried respondent and five other prisoners on numerous charges, including murder, conspiracy, and assault. The prosecution attempted to show that the Black Panther Party had organized the escape attempt and to link respondent to the conspiracy through his membership in that Party. Respondent's defense was that state police had organized the breakout and ambushed the escapees to eliminate an important faction of the Black Panther Party. During voir dire, the court admonished prospective jurors to reveal their associations, if any, with crimes of violence and their attitudes toward radical groups, including the Black Panthers. Patricia Fagan, who became a juror, testified at voir dire that she had no personal knowledge of violent crimes — as a witness, victim, or otherwise — and that she did not associate the Black Panther Party with any form of violence. However, in the course of the 17-month-long trial, evidence was introduced of a crime, unrelated to those at issue in respondent's trial, of which juror Fagan had some knowledge. A defense witness identified a Black Panther named Pratt as a police informant involved in the alleged *116 police plot. The prosecution sought to impeach this witness by introducing evidence that Pratt was in custody for the 1968 murder of a Santa Monica woman during the entire period at issue. This evidence triggered juror Fagan's recollection of the murder of a childhood friend, who was the woman Pratt had been convicted of killing. Upon hearing the evidence about Pratt, juror Fagan twice went to the trial judge's chambers to tell him of her personal acquaintance with Pratt's 1968 murder victim. She told him that she feared that she might cry if the 1968 murder were explored further at trial. The judge asked her on each occasion whether her disposition of the case would be affected. She assured him that it would not. The judge told her not to be concerned and that the matter probably would not be mentioned again. He made no record of either conversation, and he did not inform the defendants or their counsel about them. At the close of trial, the jury found respondent guilty of two counts of murder and of conspiracy to escape, and acquitted him of the remaining charges. The jury also convicted two other defendants of assault, and found insufficient evidence to support the numerous remaining charges. Respondent was sentenced to life imprisonment. Counsel for respondent subsequently learned of the ex parte communications between judge and juror and moved for a new trial. At a hearing on the motion, juror Fagan testified that she had not remembered her friend's death during voir dire and that her subsequent recollection did not affect her ability impartially to judge respondent's innocence or guilt. She admitted telling other jurors that she personally knew Pratt's 1968 murder victim, but denied making any disparaging remarks about the Black Panther Party. The trial judge concluded that the ex parte communications "lacked any significance" and that respondent suffered no prejudice therefrom. See App. C to Pet. for Cert. 22. Accordingly, he denied the motion for new trial. *117 The California Court of Appeal affirmed the conviction. It found the ex parte communication to be federal constitutional error that was harmless "beyond a reasonable doubt" because the jury's deliberations, as a whole, were unbiased. The California Supreme Court denied review. Respondent then petitioned for a writ of habeas corpus in Federal District Court. The District Court issued the writ, ruling that the ex parte communications between judge and juror violated both respondent's right to be present during all critical stages of the proceedings and his right to be represented by counsel. Furthermore, the District Court held that automatic reversal was necessary because the absence of a contemporaneous record made intelligent application of the harmless-error standard impossible. Alternatively, it concluded that a post-trial hearing could not establish that the constitutional error was harmless beyond a reasonable doubt. Thus, it found that respondent's conviction had to be vacated because of the state court's failure to hold a contemporaneous hearing about, or to make a contemporaneous record of, the ex parte communication. The Court of Appeals for the Ninth Circuit affirmed on the basis that an unrecorded ex parte communication between trial judge and juror can never be harmless error.[1] Judgment order reported at We emphatically disagree. Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant.[2] "At the same time and without detracting from *118 the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving society's interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered and should not unnecessarily infringe on competing interests." United ; see also In this spirit, we have previously noted that the Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal *119 courts' conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society's interest in the administration of criminal justice.[3] This is not to say that ex parte communications between judge and juror are never of serious concern or that a federal court on habeas may never overturn a conviction for prejudice resulting from such communications. When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.[4] The prejudicial effect of a failure to do so, however, can normally be determined by a post-trial hearing. The adequacy of any remedy is determined solely by its ability *120 to mitigate constitutional error, if any, that has occurred. See, e. g., United ; Post-trial hearings are adequately tailored to this task. See, e. g., and n. 8; Remmer v. United The final decision whether the alleged constitutional error was harmless is one of federal law. Nevertheless, the factual findings arising out of the state courts' post-trial hearings are entitled to a presumption of correctness. See 28 U.S. C. 2254(d); The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this presumption. Thus, they must be determined, in the first instance, by state courts and deferred to, in the absence of "convincing evidence" to the contrary, by the federal courts. See Here, both the State's trial and appellate courts concluded that the jury's deliberations, as a whole, were not biased. This finding of "fact" — on a question the state courts were in a far better position than the federal courts to answer — deserves a "high measure of deference," and may be set aside only if it "lack[s] even `fair support' in the record." The absence of a contemporaneous recording will rarely deprive the finding of "even `fai[r] suppor[t]' in the record." See The post-trial hearing in this case created more than adequate support for the conclusion that juror Fagan's presence on the jury did not prejudice respondent. The 1968 murder was not related to the crimes at issue in the trial. Pratt was not connected to any of the offenses for which respondent was convicted, and he did not testify at the trial. Juror Fagan never willfully concealed her association with the Santa Monica crime, and she repeatedly testified that, upon *121 recollection, the incident did not affect her impartiality.[5] She turned to the most natural source of information — the trial judge — to disclose the information she should have recalled but failed to recall during voir dire. Their ex parte communication was innocuous. They did not discuss any fact in controversy or any law applicable to the case. The judge simply assured her that there was no cause for concern. Thus, the state courts had convincing evidence that the jury's deliberations, as a whole, were not biased by the undisclosed communication of juror Fagan's recollection. The lower federal courts should have deferred to this presumptively correct state-court finding and therefore should have found the alleged constitutional error harmless beyond a reasonable doubt.[6] *122 Accordingly, we grant the motion of respondent for leave to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE BRENNAN dissents from this summary disposition. He would grant the petition for certiorari and set the case for oral argument. JUSTICE STEVENS, concurring in the judgment.

Justice Rehnquist

majority

Butterworth v. Smith

https://www.courtlistener.com/opinion/112396/butterworth-v-smith/

https://www.courtlistener.com/api/rest/v3/clusters/112396/

1989-053

A Florida statute, with certain limited exceptions, prohibits a grand jury witness from ever disclosing testimony which he gave before that body. We hold that insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment to the United States Constitution. Respondent was a reporter for the Charlotte Herald-News in Charlotte County, Florida. While writing a series of newspaper articles, he obtained information relevant to alleged improprieties committed by the Charlotte County State Attorney's Office and Sheriff's Department. A special prosecutor appointed to investigate the allegations called respondent to testify before a special grand jury which had been convened as part of the investigation. At the time he testified, respondent was warned by the special prosecutor's staff not to reveal his testimony in any manner, and that such revelation could result in a criminal prosecution for violating Fla. Stat. § 905.27. Section 905.27 provides in pertinent part: *627 "(1) A grand juror . . . or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury . . . except when required by a court to disclose the testimony for the purpose of: "(a) Ascertaining whether it is consistent with the testimony given by the witness before the court; "(b) Determining whether the witness is guilty of perjury; or "(c) Furthering Justice. "(2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or communicated to any other person, in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding.' Fla. Stat. § 905.27 (1989).[1] *628 After the grand jury terminated its investigation, respondent set out to publish a news story — and perhaps a book — about the subject matter of the investigation, a publication which would include respondent's testimony and experiences in dealing with the grand jury. He sued in the United States District Court for the Middle District of Florida, seeking a declaration that § 905.27 was an unconstitutional abridgment of speech, and an injunction preventing the State from prosecuting him. The District Court granted summary judgment to the State, holding that Florida was entitled to make the judgment that a permanent and total ban on the disclosure of witness testimony was necessary to the proper functioning of the grand jury, and that "this is the exceptional case where a severe infringement on rights under the First Amendment is permissible." 678 F. Supp. 1552, 1561 (1988). The United States Court of Appeals for the Eleventh Circuit reversed. Recognizing that the "question presented by this appeal . . . is a narrow one," the court held that "the provisions *629 of section 905.27 prohibiting `any other person' from disclosing the nature of grand jury testimony are unconstitutional to the extent that they apply to witnesses who speak about their own testimony after the grand jury investigation is terminated." 866 F.2d 1318, 1319, 1321 (1989). While acknowledging that "the freedom of speech afforded by the first amendment is not absolute," the court concluded that the competing state interests were not sufficiently compelling to warrant the imposition of criminal sanctions on witnesses who revealed the content of their own grand jury testimony. Id., at 1319-1320. In reaching its determination, the court relied principally on our decision in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), and the fact that the Federal Rule of Criminal Procedure governing grand jury secrecy imposes no such obligation on grand jury witnesses. 866 F.2d, at 1320. We granted certiorari, 493 U.S. 807 (1989), and now affirm.[2] Historically, the grand jury has served an important role in the administration of criminal justice. Although the English forerunner of the modern grand jury served primarily as a prosecutorial and investigative arm of the Crown and was designed to enhance the government's authority, by the 17th century the grand jury had developed an equally important function — to safeguard citizens against an overreaching Crown and unfounded accusations. See 1 S. Beale & W. Bryson, Grand Jury Law and Practice § 1:02, pp. 5-8 (1986). The tradition of secrecy surrounding grand jury proceedings evolved, at least partially, as a means of implementing this latter function by ensuring the impartiality of that body. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 *630 U. S. 211, 218-219, n. 9 (1979); Brown, The Witness and Grand Jury Secrecy, 11 Am. J. Crim. Law 169, 170 (1983). Today, grand jury secrecy remains important to safeguard a number of different interests. "We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings. See, e. g., United States v. Procter & Gamble Co., [356 U.S. 677 (1958)]. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil Co., supra, at 218-219 (footnote omitted). At the same time, we have recognized that the invocation of grand jury interests is not "some talisman that dissolves all constitutional protections." United States v. Dionisio, 410 U.S. 1, 11 (1973). Indeed, we have noted that grand juries are expected to "operate within the limits of the First Amendment," as well as the other provisions of the Constitution. Branzburg v. Hayes, 408 U.S. 665, 708 (1972). See also Wood v. Georgia, 370 U.S. 375 (1962). We must thus balance respondent's asserted First Amendment rights against Florida's interests in preserving the confidentiality of its grand jury proceedings. See Landmark Communications, *631 supra, at 838 (balancing State's interest in preserving confidentiality of judicial review proceedings against rights of newspaper reporting on such proceedings); Branzburg, supra, at 690-691 (balancing interest in effective grand jury proceedings against burden on reporters' news gathering from requiring disclosure of sources). The Court examined the tension between First Amendment rights and government investigatory proceedings in Landmark Communications, supra. There, a Virginia statute made it a crime to divulge information regarding proceedings before the state judicial review commission. A newspaper publisher was convicted of violating the statute after publishing an article accurately reporting on a pending inquiry by the commission and identifying the state judge under investigation. This Court held that the conviction violated the United States Constitution, concluding "that the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom." Id., at 838. While assuming that the confidentiality of the judicial review proceedings served legitimate state interests, the Court observed that the State had "offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined." Id., at 841. The Court also noted that over 40 States with similar judicial review procedures had found it unnecessary to criminalize the type of conduct at issue in order to preserve the integrity of their proceedings. Ibid. Florida argues that our decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), rather than Landmark, governs the validity of its prohibition. In Rhinehart we held that a protective order prohibiting a newspaper from publishing information which it had obtained through discovery procedures *632 did not offend the First Amendment. Here, by contrast, we deal only with respondent's right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury. In such cases, where a person "lawfully obtains truthful information about a matter of public significance," we have held that "state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979); Florida Star v. B. J. F., 491 U.S. 524, 533 (1989). Here Florida seeks to punish the publication of information relating to alleged governmental misconduct — speech which has traditionally been recognized as lying at the core of the First Amendment. See Landmark, 435 U. S., at 838; Wood, supra, at 388-389, 392. To justify such punishment, Florida relies on the interests in preserving grand jury secrecy acknowledged by the Court in Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979). But we do not believe those interests warrant a permanent ban on the disclosure by a witness of his own testimony once a grand jury has been discharged. Some of these interests are not served at all by the Florida ban on disclosure, and those that are served are not sufficient to sustain the statute. When an investigation ends, there is no longer a need to keep information from the targeted individual in order to prevent his escape — that individual presumably will have been exonerated, on the one hand, or arrested or otherwise informed of the charges against him, on the other.[3] There is *633 also no longer a need to prevent the importuning of grand jurors since their deliberations will be over. Similarly, the concern that some witnesses will be deterred from presenting testimony due to fears of retribution is, we think, not advanced by this prohibition; any witness is free not to divulge his own testimony, and that part of the Florida statute which prohibits the witness from disclosing the testimony of another witness remains enforceable under the ruling of the Court of Appeals. Florida's interest in preventing the subornation of grand jury witnesses who will later testify at trial is served by the prohibition in question to this extent: if the accused is of a mind to suborn potential witnesses against him, he will have an additional opportunity to learn of the existence of such a witness if that witness chooses to make his grand jury testimony public. But with present day criminal procedure generally requiring the disclosure of witnesses on the part of the State, see, e. g., Fla. Rule Crim. Proc. 3.220(a), the names of these witnesses will be available to the accused sometime before trial in any event. Florida provides substantial criminal *634 penalties for both perjury and tampering with witnesses, see Fla. Stat. §§ 837.02, 914.22 (1989), and its courts have subpoena and contempt powers available to bring recalcitrant witnesses to the stand. We think the additional effect of the ban here in question is marginal at best and insufficient to outweigh the First Amendment interest in speech involved. Florida undoubtedly retains a substantial interest in seeing that "persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil Co., supra, at 219. And the ban in question does serve that interest to some extent, although it would have the opposite effect if applied to a witness who was himself a target of the grand jury probe and desired to publicize this testimony by way of exonerating himself. But even in those situations where the disclosure by the witness of his own testimony could have the effect of revealing the names of persons who had been targeted by the grand jury but exonerated, our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech. See Landmark, supra, at 841-842 ("Our prior cases have firmly established . . . that injury to official reputation is an insufficient reason for repressing speech that would otherwise be free") (quotation omitted); cf. Florida Star v. B. J. F., supra (First Amendment precluded State from imposing damages for publication of rape victim's name); Smith v. Daily Mail Publishing Co., supra (State could not constitutionally punish the publication of a juvenile offender's name); Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 (1977) (State could not constitutionally enjoin the publication of a juvenile offender's name). We also take note of the fact that neither the drafters of the Federal Rules of Criminal Procedure, nor the drafters of similar rules in the majority of the States, found it necessary to impose an obligation of secrecy on grand jury witnesses with respect to their own testimony to protect reputational *635 interests or any of the other interests asserted by Florida. Federal Rule of Criminal Procedure 6(e)(2), governing grand jury secrecy, expressly prohibits certain individuals other than witnesses from disclosing "matters occurring before the grand jury," and provides that "[n]o obligation of secrecy may be imposed on any person except in accordance with this rule." The pertinent Advisory Committee Notes on Rule 6(e)(2), 18 U.S. C. App., p. 726, expressly exempt witnesses from the obligation of secrecy, stating that "[t]he seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if a witness is not permitted to make a disclosure to counsel or to an associate." Similarly, only 14 States have joined Florida in imposing an obligation of secrecy on grand jury witnesses. Of the remaining 35 States, 21 either explicitly or implicitly exempt witnesses from a general secrecy obligation, and 14 simply remain silent on the issue. See 2 Beale & Bryson, supra, n. 3, § 7.05, pp. 20-21, and nn. 18-21.[4] While these practices are not conclusive as to the constitutionality of Florida's rule, they are probative of the weight to be assigned Florida's asserted interests and the extent to which the prohibition in question is necessary to further them. Against the state interests which we have just evaluated must be placed the impact of Florida's prohibition on respondent's ability to make a truthful public statement. The effect is dramatic: before he is called to testify in front of the grand jury, respondent is possessed of information on matters of admitted public concern about which he was free to speak at will. After giving his testimony, respondent believes he is no longer free to communicate this information since it relates to the "content, gist, or import" of his testimony. The ban extends not merely to the life of the grand jury but into the indefinite future. The potential for abuse of the Florida prohibition, through its employment as a device *636 to silence those who know of unlawful conduct or irregularities on the part of public officials, is apparent. We agree with the Court of Appeals that the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent's First Amendment right to make a truthful statement of information he acquired on his own. Its judgment is therefore Affirmed.

A Florida statute, with certain limited exceptions, prohibits a grand jury witness from ever disclosing testimony which he gave before that body. We hold that insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment to the United States Constitution. Respondent was a reporter for the Charlotte Herald-News in Charlotte County, Florida. While writing a series of newspaper articles, he obtained information relevant to alleged improprieties committed by the Charlotte County State Attorney's Office and Sheriff's Department. A special prosecutor appointed to investigate the allegations called respondent to testify before a special grand jury which had been convened as part of the investigation. At the time he testified, respondent was warned by the special prosecutor's staff not to reveal his testimony in any manner, and that such revelation could result in a criminal prosecution for violating Section 905.27 provides in pertinent part: *627 "(1) A grand juror or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury except when required by a court to disclose the testimony for the purpose of: "(a) Ascertaining whether it is consistent with the testimony given by the witness before the court; "(b) Determining whether the witness is guilty of perjury; or "(c) Furthering Justice. "(2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or communicated to any other person, in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding.'[1] *628 After the grand jury terminated its investigation, respondent set out to publish a news story — and perhaps a book — about the subject matter of the investigation, a publication which would include respondent's testimony and experiences in dealing with the grand jury. He sued in the United States District Court for the Middle District of Florida, seeking a declaration that 905.27 was an unconstitutional abridgment of speech, and an injunction preventing the State from prosecuting him. The District Court granted summary judgment to the State, holding that Florida was entitled to make the judgment that a permanent and total ban on the disclosure of witness testimony was necessary to the proper functioning of the grand jury, and that "this is the exceptional case where a severe infringement on rights under the First Amendment is permissible." The United States Court of Appeals for the Eleventh Circuit reversed. Recognizing that the "question presented by this appeal is a narrow one," the court held that "the provisions *629 of section 905.27 prohibiting `any other person' from disclosing the nature of grand jury testimony are unconstitutional to the extent that they apply to witnesses who speak about their own testimony after the grand jury investigation is terminated." While acknowledging that "the freedom of speech afforded by the first amendment is not absolute," the court concluded that the competing state interests were not sufficiently compelling to warrant the imposition of criminal sanctions on witnesses who revealed the content of their own grand jury testimony. In reaching its determination, the court relied principally on our decision in and the fact that the Federal Rule of Criminal Procedure governing grand jury secrecy imposes no such obligation on grand jury We granted certiorari, and now affirm.[2] Historically, the grand jury has served an important role in the administration of criminal justice. Although the English forerunner of the modern grand jury served primarily as a prosecutorial and investigative arm of the Crown and was designed to enhance the government's authority, by the 17th century the grand jury had developed an equally important function — to safeguard citizens against an overreaching Crown and unfounded accusations. See 1 S. Beale & W. Grand Jury Law and Practice 1:02, pp. 5-8 (1986). The tradition of secrecy surrounding grand jury proceedings evolved, at least partially, as a means of implementing this latter function by ensuring the impartiality of that body. Douglas Oil of ; Brown, The Witness and Grand Jury Secrecy, Am. J. Crim. Law 169, 170 (1983). Today, grand jury secrecy remains important to safeguard a number of different interests. "We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings. See, e. g., United ]. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil At the same time, we have recognized that the invocation of grand jury interests is not "some talisman that dissolves all constitutional protections." United Indeed, we have noted that grand juries are expected to "operate within the limits of the First Amendment," as well as the other provisions of the Constitution. See also We must thus balance respondent's asserted First Amendment rights against Florida's interests in preserving the confidentiality of its grand jury proceedings. See *631 ; The Court examined the tension between First Amendment rights and government investigatory proceedings in There, a Virginia statute made it a crime to divulge information regarding proceedings before the state judicial review commission. A newspaper publisher was convicted of violating the statute after publishing an article accurately reporting on a pending inquiry by the commission and identifying the state judge under investigation. This Court held that the conviction violated the United States Constitution, concluding "that the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom." While assuming that the confidentiality of the judicial review proceedings served legitimate state interests, the Court observed that the State had "offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined." The Court also noted that over 40 States with similar judicial review procedures had found it unnecessary to criminalize the type of conduct at issue in order to preserve the integrity of their proceedings. Florida argues that our decision in Seattle Times rather than governs the validity of its prohibition. In Rhinehart we held that a protective order prohibiting a newspaper from publishing information which it had obtained through discovery procedures *632 did not offend the First Amendment. Here, by contrast, we deal only with respondent's right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury. In such cases, where a person "lawfully obtains truthful information about a matter of public significance," we have held that "state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." ; Florida Here Florida seeks to punish the publication of information relating to alleged governmental misconduct — speech which has traditionally been recognized as lying at the core of the First Amendment. See 435 U. S., ; To justify such punishment, Florida relies on the interests in preserving grand jury secrecy acknowledged by the Court in Douglas Oil of 441 U.S. 2 But we do not believe those interests warrant a permanent ban on the disclosure by a witness of his own testimony once a grand jury has been discharged. Some of these interests are not served at all by the Florida ban on disclosure, and those that are served are not sufficient to sustain the statute. When an investigation ends, there is no longer a need to keep information from the targeted individual in order to prevent his escape — that individual presumably will have been exonerated, on the one hand, or arrested or otherwise informed of the charges against him, on the other.[3] There is *633 also no longer a need to prevent the importuning of grand jurors since their deliberations will be over. Similarly, the concern that some witnesses will be deterred from presenting testimony due to fears of retribution is, we think, not advanced by this prohibition; any witness is free not to divulge his own testimony, and that part of the Florida statute which prohibits the witness from disclosing the testimony of another witness remains enforceable under the ruling of the Court of Appeals. Florida's interest in preventing the subornation of grand jury witnesses who will later testify at trial is served by the prohibition in question to this extent: if the accused is of a mind to suborn potential witnesses against him, he will have an additional opportunity to learn of the existence of such a witness if that witness chooses to make his grand jury testimony public. But with present day criminal procedure generally requiring the disclosure of witnesses on the part of the State, see, e. g., Fla. Rule Crim. Proc. 3.220(a), the names of these witnesses will be available to the accused sometime before trial in any event. Florida provides substantial criminal *634 penalties for both perjury and tampering with witnesses, see Fla. Stat. 837.02, 914.22 and its courts have subpoena and contempt powers available to bring recalcitrant witnesses to the stand. We think the additional effect of the ban here in question is marginal at best and insufficient to outweigh the First Amendment interest in speech involved. Florida undoubtedly retains a substantial interest in seeing that "persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil And the ban in question does serve that interest to some extent, although it would have the opposite effect if applied to a witness who was himself a target of the grand jury probe and desired to publicize this testimony by way of exonerating himself. But even in those situations where the disclosure by the witness of his own testimony could have the effect of revealing the names of persons who had been targeted by the grand jury but exonerated, our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech. See -842 (quotation omitted); cf. Florida ; ; Oklahoma Publishing v. Oklahoma County District Court, We also take note of the fact that neither the drafters of the Federal Rules of Criminal Procedure, nor the drafters of similar rules in the majority of the States, found it necessary to impose an obligation of secrecy on grand jury witnesses with respect to their own testimony to protect reputational *635 interests or any of the other interests asserted by Florida. Federal Rule of Criminal Procedure 6(e)(2), governing grand jury secrecy, expressly prohibits certain individuals other than witnesses from disclosing "matters occurring before the grand jury," and provides that "[n]o obligation of secrecy may be imposed on any person except in accordance with this rule." The pertinent Advisory Committee Notes on Rule 6(e)(2), 18 U.S. C. App., p. 726, expressly exempt witnesses from the obligation of secrecy, stating that "[t]he seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if a witness is not permitted to make a disclosure to counsel or to an associate." Similarly, only 14 States have joined Florida in imposing an obligation of secrecy on grand jury Of the remaining 35 States, 21 either explicitly or implicitly exempt witnesses from a general secrecy obligation, and 14 simply remain silent on the issue. See 2 Beale & 7.05, pp. 20-21, and nn. 18-21.[4] While these practices are not conclusive as to the constitutionality of Florida's rule, they are probative of the weight to be assigned Florida's asserted interests and the extent to which the prohibition in question is necessary to further them. Against the state interests which we have just evaluated must be placed the impact of Florida's prohibition on respondent's ability to make a truthful public statement. The effect is dramatic: before he is called to testify in front of the grand jury, respondent is possessed of information on matters of admitted public concern about which he was free to speak at will. After giving his testimony, respondent believes he is no longer free to communicate this information since it relates to the "content, gist, or import" of his testimony. The ban extends not merely to the life of the grand jury but into the indefinite future. The potential for abuse of the Florida prohibition, through its employment as a device *636 to silence those who know of unlawful conduct or irregularities on the part of public officials, is apparent. We agree with the Court of Appeals that the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent's First Amendment right to make a truthful statement of information he acquired on his own. Its judgment is therefore Affirmed.

Justice Thomas

concurring

Kowalski v. Tesmer

https://www.courtlistener.com/opinion/137732/kowalski-v-tesmer/

https://www.courtlistener.com/api/rest/v3/clusters/137732/

2004-008

That this case is even remotely close demonstrates that our third-party standing cases have gone far astray. We have granted third-party standing in a number of cases to litigants whose relationships with the directly affected individuals were at best remote. We have held, for instance, that beer vendors have standing to raise the rights of their prospective young male customers, see Craig v. Boren, 429 U.S. 190, 192-197 (1976); that criminal defendants have standing to raise the rights of jurors excluded from service, *135 see Powers v. Ohio, 499 U.S. 400, 410-416 (1991); that sellers of mail-order contraceptives have standing to assert the rights of potential customers, see Carey v. Population Services Int'l, 431 U.S. 678, 682-684 (1977); that distributors of contraceptives to unmarried persons have standing to litigate the rights of the potential recipients, Eisenstadt v. Baird, 405 U.S. 438, 443-446 (1972); and that white sellers of land have standing to litigate the constitutional rights of potential black purchasers, see Barrows v. Jackson, 346 U.S. 249, 254-258 (1953). I agree with the Court that "[t]he attorneys before us do not have a `close relationship' with their alleged `clients'; indeed, they have no relationship at all." Ante, at 131. The Court of Appeals understandably could have thought otherwise, given how generously our precedents have awarded third-party standing. It is doubtful whether a party who has no personal constitutional right at stake in a case should ever be allowed to litigate the constitutional rights of others. Before Truax v. Raich, 239 U.S. 33, 38-39 (1915), and Pierce v. Society of Sisters, 268 U.S. 510, 535-536 (1925), this Court adhered to the rule that "[a] court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it." Clark v. Kansas City, 176 U.S. 114, 118 (1900) (internal quotation marks omitted).[*] This made sense. Litigants who have no personal right at stake may have very different interests from the individuals whose rights they are raising. Moreover, absent a personal right, a litigant has no cause of action (or defense), and thus no right to relief. It may be too late in the day to return to this traditional view. But even assuming it makes sense to grant litigants *136 third-party standing in at least some cases, it is more doubtful still whether third-party standing should sweep as broadly as our cases have held that it does. Because the Court's opinion is a reasonable application of our precedents, I join it in full.

That this case is even remotely close demonstrates that our third-party standing cases have gone far astray. We have granted third-party standing in a number of cases to litigants whose relationships with the directly affected individuals were at best remote. We have held, for instance, that beer vendors have standing to raise the rights of their prospective young male customers, see ; that criminal defendants have standing to raise the rights of jurors excluded from service, *135 see ; that sellers of mail-order contraceptives have standing to assert the rights of potential customers, see ; that distributors of contraceptives to unmarried persons have standing to litigate the rights of the potential recipients, ; and that white sellers of land have standing to litigate the constitutional rights of potential black purchasers, see I agree with the Court that "[t]he attorneys before us do not have a `close relationship' with their alleged `clients'; indeed, they have no relationship at all." Ante, at 131. The Court of Appeals understandably could have thought otherwise, given how generously our precedents have awarded third-party standing. It is doubtful whether a party who has no personal constitutional right at stake in a case should ever be allowed to litigate the constitutional rights of others. Before and this Court adhered to the rule that "[a] court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it."[*] This made sense. Litigants who have no personal right at stake may have very different interests from the individuals whose rights they are raising. Moreover, absent a personal right, a litigant has no cause of action (or defense), and thus no right to relief. It may be too late in the day to return to this traditional view. But even assuming it makes sense to grant litigants *136 third-party standing in at least some cases, it is more doubtful still whether third-party standing should sweep as broadly as our cases have held that it does. Because the Court's opinion is a reasonable application of our precedents, I join it in full.

Justice Breyer

second_dissenting

Brown v. Sanders

https://www.courtlistener.com/opinion/145694/brown-v-sanders/

https://www.courtlistener.com/api/rest/v3/clusters/145694/

2005-017

The question before us is whether California's approach to imposing the death penalty makes California a "weighing" or a "nonweighing" State for purposes of determining whether to apply "harmless-error" review in a certain kind of death case—namely, a case in which the death sentence rests in part on an invalid aggravating circumstance. In my view, it does not matter whether California is a "weighing" or a "nonweighing" State, as ordinary rules of appellate review should apply. A reviewing court must find that the jury's consideration of an invalid aggravator was harmless beyond a reasonable doubt, regardless of the form a State's death penalty law takes. I To understand my answer, one must fully understand the question, including the somewhat misleading terminology in which the question is phrased. A Death penalty proceedings take place in two stages. At the first stage, the jury must determine whether there is something especially wrongful, i. e., "aggravating," about the defendant's conduct. State statutes typically list these specific *229 "aggravating" factors, and the jury typically must find at least one such factor present for the defendant to become eligible for the death penalty. "By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition," as required by the Eighth Amendment. Lowenfield v. Phelps, 484 U.S. 231, 244 (1988). If the jury finds that an aggravating factor is present and the defendant is consequently eligible for the death penalty, it proceeds to Stage Two. At Stage Two, the jury (or sometimes the judge) must determine whether to sentence the defendant to death or to provide a different sentence (usually, life imprisonment). At this stage, this Court has said, States divide as to their approach. Weighing States. Some States tell the jury: "Consider all the mitigating factors and weigh them against the specific aggravating factors that you found, at Stage One, made the defendant eligible for the death penalty. If the aggravating factors predominate, you must sentence the defendant to death; otherwise, you may not." Because the law in these States tells the jury to weigh only statutory aggravating factors (typically the same factors considered at Stage One) against the mitigating factors, this Court has called these States "weighing States." This is something of a misnomer because the jury cannot weigh everything but is instead limited to weighing certain statutorily defined aggravating factors. The Court has identified Mississippi as a classic example of a weighing State. See Stringer v. Black, 503 U.S. 222, 229 (1992). Nonweighing States. Other States tell the jury: "Consider all the mitigating factors and weigh them, not simply against the statutory aggravating factors you previously found at Stage One, but against any and all factors you consider aggravating." Because the balance includes all aggravating factors and not only those on the Stage One eligibility list, this Court has called such States "nonweighing States." Although it might be clearer to call these States "complete *230 weighing" States (for the jury can weigh everything that is properly admissible), I shall continue to use the traditional terminology. The Court has identified Georgia as the prototypical example of a State that has adopted this complete weighing approach. Ibid. B The question in this case arises under the following circumstances. (1) At Stage One, a jury found several aggravating factors, the presence of any one of which would make the defendant eligible for the death penalty. (2) At least one of those aggravating factors was an "improper" factor, i. e., a factor that the law forbids the jury from considering as aggravating and that the jury's use of which (for this purpose) was later invalidated on appeal. The sentencing court made a mistake, indeed a mistake of constitutional dimensions, when it listed the "heinous, atrocious, or cruel," Cal. Penal Code Ann. § 190.2(a)(14) (West Supp. 2005), aggravating factor as one of the several factors for the jury to consider at Stage One. See Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (plurality opinion). But that mistake did not, in and of itself, forbid application of the death penalty. After all, the jury also found other listed aggravating factors, the presence of any one of which made the defendant eligible for the death penalty. (3) All the evidence before the sentencing jury at Stage Two was properly admitted. The evidence that supported the improper heinousness factor, for example, also showed how the crime was committed, and the jury is clearly entitled to consider it. Given this outline of the problem, two questions follow. Question One: Is it possible that the judge's legal mistake at Stage One—telling the jury that it could determine that the "heinous, atrocious, or cruel" aggravator was present—prejudiced the jury's decisionmaking at Stage Two? In other words, could that mistake create harmful error, causing the *231 jury to impose a death sentence due to the fact that it was told to give special weight to its heinousness finding? The lower courts have read this Court's opinions to say that in a nonweighing State the answer must be "no"; but in a weighing State the answer might be "yes." Question Two: Given the lower courts' answer to Question One, is California a nonweighing State? If so, the reviewing court can assume, without going further, that the error arising out of the sentencing judge's having listed an invalid aggravator was harmless. Or is California a weighing State? If so, the reviewing court should have gone further and determined whether the error was in fact harmless. I would answer Question Two by holding that the lower courts have misunderstood this Court's answer to Question One. Despite the Court's occasional suggestion to the contrary, the weighing/nonweighing distinction has little to do with the need to determine whether the error was harmless. Moreover, given "the `acute need' for reliable decisionmaking when the death penalty is at issue," Deck v. Missouri, 544 U.S. 622, 632 (2005), reviewing courts should decide if that error was harmful, regardless of the form a State's death penalty law takes. II To distinguish between weighing and nonweighing States for purposes of determining whether to apply harmless-error analysis is unrealistic, impractical, and legally unnecessary. A Use of the distinction is unrealistic because it is unrelated to any plausible conception of how a capital sentencing jury actually reaches its decision. First, consider the kind of error here at issue. It is not an error about the improper admission of evidence. See infra, at 239-241. It is an error about the importance a jury might attach to certain admissible evidence. Using the metaphor of a "thumb on death's side of the scale," we have identified the error as the "possibility *232 not only of randomness but also of bias in favor of the death penalty." Stringer v. Black, 503 U.S., at 236; see Sochor v. Florida, 504 U.S. 527, 532 (1992) ("Employing an invalid aggravating factor in the weighing process creates the possibility of randomness by placing a thumb on death's side of the scale, thus creating the risk of treating the defendant as more deserving of the death penalty" (internal quotation marks, citations, and alterations omitted)). Second, consider why that error could affect a decision to impose death. If the error causes harm, it is because a jury has given special weight to its finding of (or the evidence that shows) the invalid "aggravating factor." The jury might do so because the judge or prosecutor led it to believe that state law attaches particular importance to that factor: Indeed, why else would the State call that factor an "aggravator" and/or permit it to render a defendant death eligible? See Zant v. Stephens, 462 U.S. 862, 888 (1983) (recognizing that statutory label "arguably might have caused the jury to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given"); see also ante, at 226 (Stevens, J., dissenting) (noting that jury may consider the aggravating label "a legislative imprimatur on a decision to impose death and therefore give greater weight to its improper heinousness finding . . ."); Clemons v. Mississippi, 494 U.S. 738, 753, 755 (1990) (noting that the prosecutor "repeatedly emphasized and argued the `especially heinous' factor during the sentencing hearing" and remanding for the Mississippi Supreme Court to conduct harmless-error review). The risk that the jury will give greater weight at Stage Two to its Stage One finding of an aggravating factor—a factor that, it turns out, never should have been found in the first instance—is significant in a weighing State, for the judge will explicitly tell the jury to consider that particular aggravating factor in its decisionmaking process. That risk may prove significant in a nonweighing State as well, for *233 there too the judge may tell the jury to consider that aggravating factor in its decisionmaking process. The only difference between the two kinds of States is that, in the nonweighing State, the jury can also consider other aggravating factors (which are usually not enumerated by statute). Cf. Ga. Code Ann. § 17-10-30(b) (2004) (judge or jury "shall consider . . . any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence" (emphasis added)). But the potential for the same kind of constitutional harm exists in both kinds of States, namely, that the jury will attach special weight to that aggravator on the scale, the aggravator that the law says should not have been there. To illustrate this point, consider the following two statements. Statement One—The judge tells the jury in a weighing State: "You can sentence the defendant to death only if you find one, or more, of the following three aggravating circumstances, X, Y, or Z. If you do, the law requires you to consider those aggravators and weigh them against the mitigators." Statement Two—The judge tells the jury in a nonweighing State: "You can sentence the defendant to death only if you find one, or more, of the following three aggravating circumstances, X, Y, or Z. If you do, the law permits you to consider all mitigating and aggravating evidence, including X, Y, and Z, in reaching your decision." What meaningful difference is there between these two statements? The decisionmaking process of the first jury and that of the second jury will not differ significantly: Both juries will weigh the evidence offered in aggravation and the evidence offered in mitigation. Cf. Brief for Criminal Justice Legal Foundation as Amicus Curiae 4 ("In reality, all sentencers `weigh'"). If Statement One amounts to harmful error because the prosecutor emphasized the importance of wrongfully listed factor Y, why would Statement Two not amount to similarly harmful error? In both instances, a *234 jury might put special weight upon its previous finding of factor Y. It is not surprising that commentators have found unsatisfactory the Court's efforts to distinguish between the two statements for harmless-error purposes. See, e. g., Steiker & Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 386-387 (1995) ("[T]he different doctrinal approaches to `weighing' and `non-weighing' schemes are difficult to justify given that the sentencer's decisionmaking process is likely to be similar under either scheme"); Widder, Hanging Life in the Balance: The Supreme Court and the Metaphor of Weighing in the Penalty Phase of the Capital Trial, 68 Tulane L. Rev. 1341, 1363-1365 (1994) (arguing that the distinction is largely an "illusion" that "appears to be derived from a fixation on the literal meaning of the metaphor of weighing, [which] remains a common means of describing the capital sentencing process even in decisions of state courts that rely on the non-weighing status of their statutory schemes to uphold [death] sentences resting on invalid factors"). B The distinction is impractical to administer for it creates only two paradigms—States that weigh only statutory aggravators and States that weigh any and all circumstances (i. e., statutory and nonstatutory aggravators). Many States, however, fall somewhere in between the two paradigms. A State, for example, might have a set of aggravating factors making a defendant eligible for the death penalty and an additional set of sentencing factors (unrelated to the eligibility determination) designed to channel the jury's discretion. California is such a State, as it requires the jury to take into account the eligibility-related aggravating factors and 11 other sentencing factors—including an omnibus factor that permits consideration of all of the circumstances of the crime. Cal. Penal Code Ann. § 190.3 (West 1999). And because *235 many States collapse Stage One (eligibility) and Stage Two (sentence selection) into a single proceeding in which the jury hears all of the evidence at the same time, those States permit the prosecution to introduce and argue any relevant evidence, including evidence related to the statutory aggravators. Indeed, one State the Court has characterized as a weighing State (Mississippi) and one State the Court has characterized as a nonweighing State (Virginia) both fall into this intermediate category. Miss. Code Ann. § 99-19-101 (1973-2000); Va. Code Ann. § 19.2-264.4(B) (Lexis 2004). Efforts to classify these varied schemes, for purposes of applying harmless-error analysis, produce much legal heat while casting little light. C Our precedents, read in detail, do not require us to maintain this unrealistic and impractical distinction. The Court has discussed the matter in three key cases. In the first case, Zant v. Stephens, the Court considered an error that arose in Georgia, a nonweighing State. The Georgia Supreme Court had held that one of several statutory aggravating circumstances found by the jury—that the defendant had a "`substantial history of serious assaultive criminal convictions'" —was unconstitutionally vague. 462 U.S., at 867, and n. 5. The jury, however, had also found other aggravators present, so the defendant remained eligible for death. The Georgia Supreme Court concluded that the sentencing court's instruction on the unconstitutional factor, though erroneous, "had `an inconsequential impact on the jury's decision regarding the death penalty.'" Id., at 889 (quoting Zant v. Stephens, 250 Ga. 97, 100, 297 S.E.2d 1, 4 (1982)). This Court agreed with the Georgia Supreme Court's conclusion. The Court conceded that the label—"aggravating circumstance"—created the risk that the jury might place too much weight on the evidence that showed that aggravator. Indeed, it said that the statutory label "`aggravating circumstance[s]'" might "arguably . . . have caused the jury *236 to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given." 462 U.S., at 888. But the Court concluded that, under the circumstances, the error was harmless. For one thing, Georgia's statute permitted the jury to consider more than just the specific aggravators related to Stage One. See id., at 886. For another thing, the trial court's "instructions did not place particular emphasis on the role of statutory aggravating circumstances in the jury's ultimate decision." Id., at 889 (citation omitted). In fact, it specifically told the jury to "`consider all facts and circumstances presented in ext[e]nuation..., mitigation and aggravation.'" Ibid. Finally, there was no indication at all that either the judge or the prosecutor tried to single out the erroneous aggravator for special weight. Because under the circumstances there was no real harm, the Court concluded that "any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process." Ibid. The Court in Zant did not say that the jury's consideration of an improper aggravator is never harmless in a State like Georgia. It did say that the jury's consideration of the improper aggravator was harmless under the circumstances of that case. And the Court's detailed discussion of the jury instructions is inconsistent with a rule of law that would require an automatic conclusion of "harmless error" in States with death penalty laws like Georgia's. See id., at 888-889, and n. 25; see also id., at 891 ("Under Georgia's sentencing scheme, and under the trial judge's instructions in this case, no suggestion is made that the presence of more than one aggravating circumstance should be given special weight" (emphasis added)). The dissent in Zant also clearly understood the principal opinion to have conducted a harmless-error analysis. Id., at 904-905 (opinion of Marshall, J., joined by Brennan, J.). And the Court repeated this same understanding in a case decided only two weeks later. Barclay v. Florida, 463 U.S. 939, 951, n. 8 (1983) (plurality opinion) (upholding death sentence *237 and concluding that "we need not apply the type of federal harmless-error analysis that was necessary in Zant".) The second case, Clemons v. Mississippi, involved a weighing State, Mississippi. The Mississippi Supreme Court upheld the petitioner's death sentence "even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was `especially heinous, atrocious, or cruel,' was constitutionally invalid." 494 U.S., at 741. Finding it unclear whether the state court reweighed the aggravating and mitigating evidence or conducted harmless-error review, the Court vacated and remanded to the Mississippi Supreme Court to conduct either procedure (or to remand to a sentencing jury) in the first instance. Id., at 754. As far as the Court's "harmless-error" analysis reveals, the reason the Court remanded—the reason it thought the error might not be harmless—had nothing to do with the fact that Mississippi was a so-called weighing State. Cf. ante, at 218-219, n. 3. Rather, the Court thought the error might be harmful because "the State repeatedly emphasized and argued the `especially heinous' factor during the sentencing hearing," in stark contrast to the "little emphasis" it gave to the other valid aggravator found by the jury. 494 U.S., at 753. The Court concluded that, "[u]nder these circumstances, it would require a detailed explanation based on the record for us possibly to agree that the error in giving the invalid `especially heinous' instruction was harmless." Id., at 753-754. The third case, Stringer v. Black, presented a different kind of question: For the purposes of Teague v. Lane, 489 U.S. 288 (1989), does the rule that a vague aggravating circumstance violates the Eighth Amendment apply to a weighing State like Mississippi in the same way it applies to a nonweighing State like Georgia? The Court answered this question "yes." In so doing, it described the difference between Mississippi's system and Georgia's system as follows: *238 "In a nonweighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty. Assuming a determination by the state appellate court that the invalid factor would not have made a difference to the jury's determination, there is no constitutional violation resulting from the introduction of the invalid factor in an earlier stage of the proceedings. But when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence." 503 U.S., at 232 (emphasis added). The first sentence in this statement is the first and only suggestion in our cases that the submission of a vague aggravating circumstance to a jury can never result in constitutional error in a nonweighing State. Indeed, the term "nonweighing State," and the significance attached to it, does not appear in the Court's jurisprudence prior to Stringer. The second sentence in the statement is less categorical than the first. It suggests that a state appellate court would have to make some form of a harmless-error inquiry to satisfy itself that the invalidated factor "would not have made a difference to the jury's determination" before it could conclude that there was "no constitutional violation." Ibid. Given this errant language in Stringer, I agree that it is "[n]ot surprisin[g]" that the lower courts have since operated under the assumption "that different rules apply to weighing and nonweighing States," and that harmless-error review is necessary only in the former. Ante, at 218, n. 3. My point is simply that such an assumption is unfounded based on our *239 prior cases. And regardless of the lower courts' interpretation of our precedents, I think it more important that our own decisions have not repeated Stringer's characterization of those precedents. See, e. g., Tuggle v. Netherland, 516 U.S. 10, 11 (1995) (per curiam) (characterizing Zant as holding "that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid" (emphasis added)). For the reasons stated in Parts II-A and II-B, supra, I would not take a single ambiguous sentence of dicta and derive from it a rule of law that is unjustified and that, in cases where the error is in fact harmful, would deprive a defendant of a fair and reliable sentencing proceeding. III The upshot is that I would require a reviewing court to examine whether the jury's consideration of an unconstitutional aggravating factor was harmful, regardless of whether the State is a weighing State or a nonweighing State. I would hold that the fact that a State is a nonweighing State may make the possibility of harmful error less likely, but it does not excuse a reviewing court from ensuring that the error was in fact harmless. Our cases in this area do not require a different result. IV The Court reaches a somewhat similar conclusion. It, too, would abolish (or at least diminish the importance of) the weighing/nonweighing distinction for purposes of harmless-error analysis. But then, surprisingly, it also diminishes the need to conduct any harmless-error review at all. If all the evidence was properly admitted and if the jury can use that evidence when it considers other aggravating factors, any error, the Court announces, must be harmless. See ante, at 220 (holding that when "one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances" that underlie the invalidated *240 aggravating factor, a reviewing court need not apply harmless-error review). Common sense suggests, however, and this Court has explicitly held, that the problem before us is not a problem of the admissibility of certain evidence. It is a problem of the emphasis given to that evidence by the State or the trial court. If that improper emphasis is strong enough, it can wrongly place a "thumb on death's side of the scale" at Stage Two (sentencing). That is what the Court said in Stringer, that is what the Court necessarily implied in Zant, and that is what the Court held in Clemons. I believe the Court is right to depart from the implication of an errant sentence in Stringer. But it is wrong to depart without explanation from Clemons' unanimous holding—a holding that at least two Members of this Court have explicitly recognized as such. See Pensinger v. California, 502 U.S. 930, 931 (1991) (O'Connor, J., joined by Kennedy, J., dissenting from denial of certiorari) (noting that the "`especially heinous' instruction did not change the mix of evidence presented to the jury in [Clemons]" and "that fact alone did not support a finding of harmlessness"). The Court cannot reconcile its holding with Clemons. That opinion makes clear that the issue is one of emphasis, not of evidence. Indeed, the Court explicitly disavowed the suggestion that Mississippi's "reliance on the `especially heinous' factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding. All of the circumstances surrounding the murder already had been aired during the guilt phase of the trial and a jury clearly is entitled to consider such evidence in imposing [the] sentence." 494 U.S., at 754-755, n. 5. And the entire Court agreed that the potentially improper emphasis consisted of the fact that "the State repeatedly emphasized and argued the `especially heinous' factor during the sentencing hearing," while placing "little emphasis" *241 on the sole valid aggravator of robbery for pecuniary gain. Id., at 753-754; see also id., at 773, n. 23 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring in part and dissenting in part). The Court's only answer is to assert that "Clemons maintains the distinction envisioned in Zant." Ante, at 218, n. 3 (citing Clemons, supra, at 745). But Clemons did no such thing. Although the Court did observe the differences between the statutory schemes of Georgia and Mississippi, it certainly did not, as the Court claims, suggest that harmless-error analysis should never be conducted in the former and always be conducted in the latter. Rather, the Court made the unremarkable statement that "[i]n a State like Georgia, where aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury." Clemons, supra, at 744-745 (emphasis added). Of course, the implication of the qualifier "necessarily" is that, in some cases, a jury's consideration of an invalidated aggravating circumstance might require that a death sentence be vacated, even "[i]n a State like Georgia." In sum, an inquiry based solely on the admissibility of the underlying evidence is inconsistent with our previous cases. And as explained above, see supra, at 231-234, the potential for a tilting of the scales toward death is present even in those States (like Georgia and Virginia) that permit a jury to consider all of the circumstances of the crime. V It may well be that the errors at issue in this case were harmless. The State of California did not ask us to consider the Ninth Circuit's contrary view, and I have not done so. Given the fact that I (like the Court in this respect) would *242 abolish the weighing/nonweighing distinction, and in light of the explanation of the kind of error at issue, I would remand this case and require the Ninth Circuit to reconsider its entire decision in light of the considerations I have described.

The question before us is whether California's approach to imposing the death penalty makes California a "weighing" or a "nonweighing" State for purposes of determining whether to apply "harmless-error" review in a certain kind of death case—namely, a case in which the death sentence rests in part on an invalid aggravating circumstance. In my view, it does not matter whether California is a "weighing" or a "nonweighing" State, as ordinary rules of appellate review should apply. A reviewing court must find that the jury's consideration of an invalid aggravator was harmless beyond a reasonable doubt, regardless of the form a State's death penalty law takes. I To understand my answer, one must fully understand the question, including the somewhat misleading terminology in which the question is phrased. A Death penalty proceedings take place in two stages. At the first stage, the jury must determine whether there is something especially wrongful, i. e., "aggravating," about the defendant's conduct. State statutes typically list these specific * "aggravating" factors, and the jury typically must find at least one such factor present for the defendant to become eligible for the death penalty. "By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition," as required by the Eighth Amendment. If the jury finds that an aggravating factor is present and the defendant is consequently eligible for the death penalty, it proceeds to Stage Two. At Stage Two, the jury (or sometimes the judge) must determine whether to sentence the defendant to death or to provide a different sentence (usually, life imprisonment). At this stage, this Court has said, States divide as to their approach. Weighing States. Some States tell the jury: "Consider all the mitigating factors and weigh them against the specific aggravating factors that you found, at Stage One, made the defendant eligible for the death penalty. If the aggravating factors predominate, you must sentence the defendant to death; otherwise, you may not." Because the law in these States tells the jury to weigh only statutory aggravating factors (typically the same factors considered at Stage One) against the mitigating factors, this Court has called these States "weighing States." This is something of a misnomer because the jury cannot weigh everything but is instead limited to weighing certain statutorily defined aggravating factors. The Court has identified Mississippi as a classic example of a weighing State. See Nonweighing States. Other States tell the jury: "Consider all the mitigating factors and weigh them, not simply against the statutory aggravating factors you previously found at Stage One, but against any and all factors you consider aggravating." Because the balance includes all aggravating factors and not only those on the Stage One eligibility list, this Court has called such States "nonweighing States." Although it might be clearer to call these States "complete *230 weighing" States (for the jury can weigh everything that is properly admissible), I shall continue to use the traditional terminology. The Court has identified Georgia as the prototypical example of a State that has adopted this complete weighing approach. B The question in this case arises under the following circumstances. (1) At Stage One, a jury found several aggravating factors, the presence of any one of which would make the defendant eligible for the death penalty. (2) At least one of those aggravating factors was an "improper" factor, i. e., a factor that the law forbids the jury from considering as aggravating and that the jury's use of which (for this purpose) was later invalidated on appeal. The sentencing court made a mistake, indeed a mistake of constitutional dimensions, when it listed the "heinous, atrocious, or cruel," Cal. Penal Code Ann. 190.2(a)(1) aggravating factor as one of the several factors for the jury to consider at Stage One. See But that mistake did not, in and of itself, forbid application of the death penalty. After all, the jury also found other listed aggravating factors, the presence of any one of which made the defendant eligible for the death penalty. (3) All the evidence before the sentencing jury at Stage Two was properly admitted. The evidence that supported the improper heinousness factor, for example, also showed how the crime was committed, and the jury is clearly entitled to consider it. Given this outline of the problem, two questions follow. Question One: Is it possible that the judge's legal mistake at Stage One—telling the jury that it could determine that the "heinous, atrocious, or cruel" aggravator was present—prejudiced the jury's decisionmaking at Stage Two? In other words, could that mistake create harmful error, causing the *231 jury to impose a death sentence due to the fact that it was told to give special weight to its heinousness finding? The lower courts have read this Court's opinions to say that in a nonweighing State the answer must be "no"; but in a weighing State the answer might be "yes." Question Two: Given the lower courts' answer to Question One, is California a nonweighing State? If so, the reviewing court can assume, without going further, that the error arising out of the sentencing judge's having listed an invalid aggravator was harmless. Or is California a weighing State? If so, the reviewing court should have gone further and determined whether the error was in fact harmless. I would answer Question Two by holding that the lower courts have misunderstood this Court's answer to Question One. Despite the Court's occasional suggestion to the contrary, the weighing/nonweighing distinction has little to do with the need to determine whether the error was harmless. Moreover, given "the `acute need' for reliable decisionmaking when the death penalty is at issue," reviewing courts should decide if that error was harmful, regardless of the form a State's death penalty law takes. II To distinguish between weighing and nonweighing States for purposes of determining whether to apply harmless-error analysis is unrealistic, impractical, and legally unnecessary. A Use of the distinction is unrealistic because it is unrelated to any plausible conception of how a capital sentencing jury actually reaches its decision. First, consider the kind of error here at issue. It is not an error about the improper admission of evidence. See infra, at 239-21. It is an error about the importance a jury might attach to certain admissible evidence. Using the metaphor of a "thumb on death's side of the scale," we have identified the error as the "possibility *232 not only of randomness but also of bias in favor of the death penalty." ; see ("Employing an invalid aggravating factor in the weighing process creates the possibility of randomness by placing a thumb on death's side of the scale, thus creating the risk of treating the defendant as more deserving of the death penalty" (internal quotation marks, citations, and alterations omitted)). Second, consider why that error could affect a decision to impose death. If the error causes harm, it is because a jury has given special weight to its finding of (or the evidence that shows) the invalid "aggravating factor." The jury might do so because the judge or prosecutor led it to believe that state law attaches particular importance to that factor: Indeed, why else would the State call that factor an "aggravator" and/or permit it to render a defendant death eligible? See ; see also ante, at 226 (Stevens, J., dissenting) (noting that jury may consider the aggravating label "a legislative imprimatur on a decision to impose death and therefore give greater weight to its improper heinousness finding"); The risk that the jury will give greater weight at Stage Two to its Stage One finding of an aggravating factor—a factor that, it turns out, never should have been found in the first instance—is significant in a weighing State, for the judge will explicitly tell the jury to consider that particular aggravating factor in its decisionmaking process. That risk may prove significant in a nonweighing State as well, for *233 there too the judge may tell the jury to consider that aggravating factor in its decisionmaking process. The only difference between the two kinds of States is that, in the nonweighing State, the jury can also consider other aggravating factors (which are usually not enumerated by statute). Cf. Ga. Code Ann. 17-10-30(b) (200) But the potential for the same kind of constitutional harm exists in both kinds of States, namely, that the jury will attach special weight to that aggravator on the scale, the aggravator that the law says should not have been there. To illustrate this point, consider the following two statements. Statement One—The judge tells the jury in a weighing State: "You can sentence the defendant to death only if you find one, or more, of the following three aggravating circumstances, X, Y, or Z. If you do, the law requires you to consider those aggravators and weigh them against the mitigators." Statement Two—The judge tells the jury in a nonweighing State: "You can sentence the defendant to death only if you find one, or more, of the following three aggravating circumstances, X, Y, or Z. If you do, the law permits you to consider all mitigating and aggravating evidence, including X, Y, and Z, in reaching your decision." What meaningful difference is there between these two statements? The decisionmaking process of the first jury and that of the second jury will not differ significantly: Both juries will weigh the evidence offered in aggravation and the evidence offered in mitigation. Cf. Brief for Criminal Justice Legal Foundation as Amicus Curiae ("In reality, all sentencers `weigh'"). If Statement One amounts to harmful error because the prosecutor emphasized the importance of wrongfully listed factor Y, why would Statement Two not amount to similarly harmful error? In both instances, a *23 jury might put special weight upon its previous finding of factor Y. It is not surprising that commentators have found unsatisfactory the Court's efforts to distinguish between the two statements for harmless-error purposes. See, e. g., Steiker & Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, ; Widder, Hanging Life in the Balance: The Supreme Court and the Metaphor of Weighing in the Penalty Phase of the Capital Trial, 68 Tulane L. Rev. 131, 1363-1365 (199) (arguing that the distinction is largely an "illusion" that "appears to be derived from a fixation on the literal meaning of the metaphor of weighing, [which] remains a common means of describing the capital sentencing process even in decisions of state courts that rely on the non-weighing status of their statutory schemes to uphold [death] sentences resting on invalid factors"). B The distinction is impractical to administer for it creates only two paradigms—States that weigh only statutory aggravators and States that weigh any and all circumstances (i. e., statutory and nonstatutory aggravators). Many States, however, fall somewhere in between the two paradigms. A State, for example, might have a set of aggravating factors making a defendant eligible for the death penalty and an additional set of sentencing factors (unrelated to the eligibility determination) designed to channel the jury's discretion. California is such a State, as it requires the jury to take into account the eligibility-related aggravating factors and other sentencing factors—including an omnibus factor that permits consideration of all of the circumstances of the crime. Cal. Penal Code Ann. 190.3 (West 1999). And because *235 many States collapse Stage One (eligibility) and Stage Two (sentence selection) into a single proceeding in which the jury hears all of the evidence at the same time, those States permit the prosecution to introduce and argue any relevant evidence, including evidence related to the statutory aggravators. Indeed, one State the Court has characterized as a weighing State (Mississippi) and one State the Court has characterized as a nonweighing State (Virginia) both fall into this intermediate category. Miss. Code Ann. 99-19-101 (1973-2000); Va. Code Ann. 19.2-26.(B) (Lexis 200). Efforts to classify these varied schemes, for purposes of applying harmless-error analysis, produce much legal heat while casting little light. C Our precedents, read in detail, do not require us to maintain this unrealistic and impractical distinction. The Court has discussed the matter in three key cases. In the first case, the Court considered an error that arose in Georgia, a nonweighing State. The Georgia Supreme Court had held that one of several statutory aggravating circumstances found by the jury—that the defendant had a "`substantial history of serious assaultive criminal convictions'" —was unconstitutionally vague. and n. 5. The jury, however, had also found other aggravators present, so the defendant remained eligible for death. The Georgia Supreme Court concluded that the sentencing court's instruction on the unconstitutional factor, though erroneous, "had `an inconsequential impact on the jury's decision regarding the death penalty.'" ). This Court agreed with the Georgia Supreme Court's conclusion. The Court conceded that the label—"aggravating circumstance"—created the risk that the jury might place too much weight on the evidence that showed that aggravator. Indeed, it said that the statutory label "`aggravating circumstance[s]'" might "arguably have caused the jury *236 to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given." 62 U.S., at But the Court concluded that, under the circumstances, the error was harmless. For one thing, Georgia's statute permitted the jury to consider more than just the specific aggravators related to Stage One. See For another thing, the trial court's "instructions did not place particular emphasis on the role of statutory aggravating circumstances in the jury's ultimate decision." In fact, it specifically told the jury to "`consider all facts and circumstances presented in ext[e]nuation., mitigation and aggravation.'" Finally, there was no indication at all that either the judge or the prosecutor tried to single out the erroneous aggravator for special weight. Because under the circumstances there was no real harm, the Court concluded that "any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process." The Court in Zant did not say that the jury's consideration of an improper aggravator is never harmless in a State like Georgia. It did say that the jury's consideration of the improper aggravator was harmless under the circumstances of that case. And the Court's detailed discussion of the jury instructions is inconsistent with a rule of law that would require an automatic conclusion of "harmless error" in States with death penalty laws like Georgia's. See at -889, and n. 25; see also The dissent in Zant also clearly understood the principal opinion to have conducted a harmless-error analysis. at 90-905 And the Court repeated this same understanding in a case decided only two weeks later. 63 U.S. 939, (upholding death sentence *237 and concluding that "we need not apply the type of federal harmless-error analysis that was necessary in Zant".) The second case, involved a weighing State, Mississippi. The Mississippi Supreme Court upheld the petitioner's death sentence "even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was `especially heinous, atrocious, or cruel,' was constitutionally invalid." 9 U.S., at 71. Finding it unclear whether the state court reweighed the aggravating and mitigating evidence or conducted harmless-error review, the Court vacated and remanded to the Mississippi Supreme Court to conduct either procedure (or to remand to a sentencing jury) in the first instance. at 75. As far as the Court's "harmless-error" analysis reveals, the reason the Court remanded—the reason it thought the error might not be harmless—had nothing to do with the fact that Mississippi was a so-called weighing State. Cf. ante, at 218-219, n. 3. Rather, the Court thought the error might be harmful because "the State repeatedly emphasized and argued the `especially heinous' factor during the sentencing hearing," in stark contrast to the "little emphasis" it gave to the other valid aggravator found by the jury. 9 U.S., at 753. The Court concluded that, "[u]nder these circumstances, it would require a detailed explanation based on the record for us possibly to agree that the error in giving the invalid `especially heinous' instruction was harmless." at 753-75. The third case, presented a different kind of question: For the purposes of 89 U.S. 288 does the rule that a vague aggravating circumstance violates the Eighth Amendment apply to a weighing State like Mississippi in the same way it applies to a nonweighing State like Georgia? The Court answered this question "yes." In so doing, it described the difference between Mississippi's system and Georgia's system as follows: *238 "In a nonweighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty. Assuming a determination by the state appellate court that the invalid factor would not have made a difference to the jury's determination, there is no constitutional violation resulting from the introduction of the invalid factor in an earlier stage of the proceedings. But when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence." The first sentence in this statement is the first and only suggestion in our cases that the submission of a vague aggravating circumstance to a jury can never result in constitutional error in a nonweighing State. Indeed, the term "nonweighing State," and the significance attached to it, does not appear in the Court's jurisprudence prior to Stringer. The second sentence in the statement is less categorical than the first. It suggests that a state appellate court would have to make some form of a harmless-error inquiry to satisfy itself that the invalidated factor "would not have made a difference to the jury's determination" before it could conclude that there was "no constitutional violation." Given this errant language in Stringer, I agree that it is "[n]ot surprisin[g]" that the lower courts have since operated under the assumption "that different rules apply to weighing and nonweighing States," and that harmless-error review is necessary only in the former. Ante, at 218, n. 3. My point is simply that such an assumption is unfounded based on our *239 prior cases. And regardless of the lower courts' interpretation of our precedents, I think it more important that our own decisions have not repeated Stringer's characterization of those precedents. See, e. g., (characterizing Zant as holding "that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid" ). For the reasons stated in Parts II-A and I would not take a single ambiguous sentence of dicta and derive from it a rule of law that is unjustified and that, in cases where the error is in fact harmful, would deprive a defendant of a fair and reliable sentencing proceeding. III The upshot is that I would require a reviewing court to examine whether the jury's consideration of an unconstitutional aggravating factor was harmful, regardless of whether the State is a weighing State or a nonweighing State. I would hold that the fact that a State is a nonweighing State may make the possibility of harmful error less likely, but it does not excuse a reviewing court from ensuring that the error was in fact harmless. Our cases in this area do not require a different result. IV The Court reaches a somewhat similar conclusion. It, too, would abolish (or at least diminish the importance of) the weighing/nonweighing distinction for purposes of harmless-error analysis. But then, surprisingly, it also diminishes the need to conduct any harmless-error review at all. If all the evidence was properly admitted and if the jury can use that evidence when it considers other aggravating factors, any error, the Court announces, must be harmless. See ante, at 220 (holding that when "one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances" that underlie the invalidated *20 aggravating factor, a reviewing court need not apply harmless-error review). Common sense suggests, however, and this Court has explicitly held, that the problem before us is not a problem of the admissibility of certain evidence. It is a problem of the emphasis given to that evidence by the State or the trial court. If that improper emphasis is strong enough, it can wrongly place a "thumb on death's side of the scale" at Stage Two (sentencing). That is what the Court said in Stringer, that is what the Court necessarily implied in Zant, and that is what the Court held in I believe the Court is right to depart from the implication of an errant sentence in Stringer. But it is wrong to depart without explanation from ' unanimous holding—a holding that at least two Members of this Court have explicitly recognized as such. See (noting that the "`especially heinous' instruction did not change the mix of evidence presented to the jury in []" and "that fact alone did not support a finding of harmlessness"). The Court cannot reconcile its holding with That opinion makes clear that the issue is one of emphasis, not of evidence. Indeed, the Court explicitly disavowed the suggestion that Mississippi's "reliance on the `especially heinous' factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding. All of the circumstances surrounding the murder already had been aired during the guilt phase of the trial and a jury clearly is entitled to consider such evidence in imposing [the] sentence." 9 U.S., at 75-755, n. 5. And the entire Court agreed that the potentially improper emphasis consisted of the fact that "the State repeatedly emphasized and argued the `especially heinous' factor during the sentencing hearing," while placing "little emphasis" *21 on the sole valid aggravator of robbery for pecuniary gain. at 753-75; see also (mun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring in part and dissenting in part). The Court's only answer is to assert that " maintains the distinction envisioned in Zant." Ante, at 218, n. 3 (citing at 75). But did no such thing. Although the Court did observe the differences between the statutory schemes of Georgia and Mississippi, it certainly did not, as the Court claims, suggest that harmless-error analysis should never be conducted in the former and always be conducted in the latter. Rather, the Court made the unremarkable statement that "[i]n a State like Georgia, where aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury." at 7-75 Of course, the implication of the qualifier "necessarily" is that, in some cases, a jury's consideration of an invalidated aggravating circumstance might require that a death sentence be vacated, even "[i]n a State like Georgia." In sum, an inquiry based solely on the admissibility of the underlying evidence is inconsistent with our previous cases. And as explained above, see at 231-23, the potential for a tilting of the scales toward death is present even in those States (like Georgia and Virginia) that permit a jury to consider all of the circumstances of the crime. V It may well be that the errors at issue in this case were harmless. The State of California did not ask us to consider the Ninth Circuit's contrary view, and I have not done so. Given the fact that I (like the Court in this respect) would *22 abolish the weighing/nonweighing distinction, and in light of the explanation of the kind of error at issue, I would remand this case and require the Ninth Circuit to reconsider its entire decision in light of the considerations I have described.

Justice Brennan

majority

Furniture Moving Drivers v. Crowley

https://www.courtlistener.com/opinion/111210/furniture-moving-drivers-v-crowley/

https://www.courtlistener.com/api/rest/v3/clusters/111210/

1983-123

The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Act), 73 Stat. 522, as amended, 29 U.S. C. § 401 et seq., was Congress' first major attempt to regulate the internal affairs of labor unions. Title I of the Act provides a statutory "Bill of Rights" for union members, including various protections for members involved in union elections, with enforcement and appropriate remedies available in district court. Title IV, in contrast, provides an elaborate postelection procedure aimed solely at protecting union democracy through free and democratic elections, with primary responsibility for enforcement lodged with the Secretary of Labor. Resolution of the question presented by this case requires that we address the conflict that exists between the separate enforcement mechanisms included in these two Titles. In particular, we must determine whether suits alleging violations of Title I may properly be maintained in district court during the course of a union election. The Court of Appeals approved a preliminary injunction issued by the District Court that enjoined an ongoing union *529 election and ordered the staging of a new election pursuant to procedures promulgated by the court. After reviewing the complex statutory scheme created by Congress, we conclude that such judicial interference in an ongoing union election is not appropriate relief under § 102 of Title I, 29 U.S. C. § 412. We therefore reverse the Court of Appeals. I Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen, and Packers (Local 82) represents approximately 700 employees engaged in the furniture moving business in the Boston, Mass., area.[1] The union is governed by a seven-member executive board whose officers, pursuant to § 401(b) of the LMRDA, 29 U.S. C. § 481(b), must be chosen by election no less than once every three years. These elections, consistent with the executive board's discretion under the union's bylaws and constitution, have traditionally been conducted by mail referendum balloting. The dispute giving rise to the present case stems from the union election that was regularly scheduled for the last two months of 1980. On November 9, 1980, Local 82 held a meeting to nominate candidates for positions on its executive board. The meeting generated considerable interest, in part because dissident members of the union were attempting to turn the incumbent union officials out of office. Two aspects of the controversial meeting are especially important for present purposes. First, admission to the meeting was restricted to those members who could produce a computerized receipt showing that their dues had been paid up to date. Several union members, including respondent Jerome Crowley, were prohibited from entering the meeting because they did not have such dues receipts in their possession. Second, during the actual *530 nominations process, there was disagreement relating to the office for which respondent John Lynch had been nominated. At the close of nominations, petitioner Bart Griffiths, the union's incumbent secretary-treasurer, declared himself the only candidate nominated for that office; at the same time, he included Lynch among the candidates selected to run for union president. Several dissatisfied members of the union, now respondents before this Court,[2] filed a protest with the union. On November 20, their protest was denied by Local 82.[3] Election ballots were thereafter distributed to all members of the union, who were instructed to mark and return the ballots by mail so that they would arrive in a designated post office box by 9 a. m. on December 13, 1980, at which time they were scheduled to be counted. Respondent Lynch's name appeared on the ballot as a candidate for president, and not for secretary-treasurer. On December 1, 1980, after the distribution of ballots had been completed, the respondents filed this action in the United States District Court for the District of Massachusetts. They alleged, inter alia, that Local 82 and its officers had violated several provisions of Title I of the LMRDA, and sought a preliminary injunction. In particular, the respondents claimed that restricting admission to the nominations meeting to those members who could produce computerized dues receipts violated their "equal rights . . . to nominate *531 candidates [and] to attend membership meetings" under § 101(a)(1) of the Act,[4] as well as their right freely to express views at meetings of the union under § 101(a)(2) of the Act.[5] They also alleged that the union and its officers had violated § 101(a)(1) by failing to recognize respondent Lynch as a candidate for secretary-treasurer.[6] *532 After preliminary papers were filed, on December 12 the District Court issued a temporary restraining order to preserve the status quo and to protect its own jurisdiction. See App. 40-47. Given that the next morning (December 13) was the pre-established deadline for voting, many, if not most, of the ballots had already been returned by the union's voting members. Nonetheless, the court noted that federal-court jurisdiction was available under § 102 of Title I, 29 U.S. C. § 412, for claims alleging discriminatory application of union rules. Moreover, the court's order specifically required that the ballots be sealed and delivered to the court, thereby preventing the petitioners from counting the ballots until a final determination could be made on the motion for a preliminary injunction. Several days of hearings on the preliminary injunction, and several months of negotiations concerning an appropriate court order to accompany that injunction, followed. Finally, on July 13, 1981, the District Court issued a preliminary injunction accompanied by a memorandum opinion. 521 F. Supp. 614 (1981). The court first addressed more fully the petitioners' argument that, because the challenged conduct concerned the procedures for conducting union elections, the respondents' exclusive remedy was to file a complaint with the Secretary of Labor under Title IV. The court rejected this argument, noting that, "at least with respect to actions challenging pre-election conduct, Title I of the LMRDA establishes an alternative enforcement mechanism for remedying conduct interfering with a member's right to engage in the activities associated with union democracy." Id., at 621 (footnote omitted). Therefore, the court concluded, it could properly invoke its jurisdiction under Title I, if only for those claims concerning dues receipts and the nomination of respondent Lynch that are now before this Court. Id., at 622-623. Because the suit concerned disputes arising out of a nominations meeting conducted in preparation for a union election, and given that the court had issued a temporary *533 restraining order barring actual completion of the election, Title I jurisdiction could properly be asserted over this "pre-election conduct." Id., at 621, n. 12. After concluding that the respondents had demonstrated a substantial likelihood of success on their claims,[7] the court issued its comprehensive injunction.[8] The court explicitly intended to issue an order that "interfere[d] as little as possible with the nomination and election procedures" required by the union's constitution and bylaws, id., at 634; moreover, the terms of the preliminary injunction were derived in large part from an ongoing process of negotiations and hearings that the court had conducted with the parties during the preceding six months. Nonetheless, the order declared the ballots cast in December 1980 to be "legally without effect," id., at 636, n., and provided detailed procedures to be followed by the union during a new nominations meeting and a subsequent election. Among other things, the order selected an outside group of arbitrators to conduct and supervise the election, and set forth eligibility requirements for attending the nominations meeting, being a candidate for office, and *534 voting. The order also provided that it would remain in effect until further order of the District Court. The petitioners appealed, and the Secretary of Labor, who until then had not participated in the proceedings, intervened on their behalf. They argued that the District Court lacked authority under Title I to enjoin the tabulation of ballots and order new nominations and elections under court supervision. The Court of Appeals rejected these arguments, however, and affirmed in all respects. 679 F.2d 978 (CA1 1982). It agreed with the District Court that Title I remedies are not foreclosed when violations of Title I occur during the course of an election. The court also held that § 403 of the Act, which explicitly provides that Title IV's remedies are exclusive for elections that are "already conducted," 29 U.S. C. § 483, does not apply until all the ballots have actually been tabulated.[9] Writing in dissent, Judge Campbell was "unable to read Title I as extending so far as to allow a district court, once balloting has commenced, to invalidate an election and order a new one under its supervision and under terms and conditions extemporized by the courts and parties." 679 F.2d, at 1004. He believed that "the proper accommodation between Title I and Title IV requires consideration not only of the stage which the election process has reached but [also] the nature of the relief" requested and granted. Id., at 1005. Because of the confusion evident among the lower federal courts that have tried to reconcile the remedial provisions *535 under Title I and Title IV of the Act,[10] we granted certiorari. 459 U.S. 1168 (1983). We now reverse.[11] II To examine fully the relationship between the respective enforcement provisions of Title I and Title IV of the *536 LMRDA, it is necessary first to summarize the relevant statutory provisions and Congress' principal purposes in their enactment. The LMRDA was "the product of congressional concern with widespread abuses of power by union leadership." Finnegan v. Leu, 456 U.S. 431, 435 (1982). Although the Act "had a history tracing back more than two decades," ibid., and was directly generated by several years of congressional hearings, see S. Rep. No. 187, 86th Cong., 1st Sess., 2 (1959) (hereafter S. Rep. No. 187), many specific provisions did not find their way into the Act until the proposed legislation was fully considered on the floor of the Senate, 456 U.S., at 435, n. 4. It should not be surprising, therefore, that the interaction between various provisions that were finally included in the Act has generated considerable uncertainty. A Chief among the causes for this confusion is Title I of the Act, which provides union members with an exhaustive "Bill of Rights" enforceable in federal court. §§ 101-105, 29 U.S. C. §§ 411-415. In particular, Title I is designed to guarantee every union member equal rights to vote and otherwise participate in union decisions, freedom from unreasonable *537 restrictions on speech and assembly, and protection from improper discipline. See Finnegan v. Leu, supra, at 435-436; Steelworkers v. Sadlowski, 457 U.S. 102, 109-110 (1982). Given these purposes, there can be no doubt that the protections afforded by Title I extend to union members while they participate in union elections. As we have previously noted: "Congress adopted the freedom of speech and assembly provision [§ 101(a)(2), 29 U.S. C. § 411(a)(2)] in order to promote union democracy. It recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal. Congress also recognized that this freedom is particularly critical, and deserves vigorous protection, in the context of election campaigns. For it is in elections that members can wield their power, and directly express their approval or disapproval of the union leadership." Sadlowski, supra, at 112 (citations omitted). As first introduced by Senator McClellan on the floor of the Senate, see 105 Cong. Rec. 6469-6476, 6492-6493 (1959), Title I empowered the Secretary of Labor to seek injunctions and other relief in federal district court to enforce the rights guaranteed to union members. A few days later, however, the McClellan amendment was replaced by a substitute amendment offered by Senator Kuchel. See id., at 6693-6694, 6717-6727. Among the principal changes made by this substitute was to provide for enforcement of Title I through suits by individual union members in federal district court. Id., at 6717, 6720.[12] As so amended, the legislation *538 was endorsed in the Senate by a vote of 77-14, id., at 6727, and was quickly accepted without substantive change by the House, see H. R. 8400, 86th Cong., 1st Sess., § 102 (1959); H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 31 (1959) (hereafter H. R. Conf. Rep. No. 1147). In relevant part, therefore, § 102 of the Act now provides: "Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate." 73 Stat. 523, 29 U.S. C. § 412. Standing by itself, this jurisdictional provision suggests that individual union members may properly maintain a Title I suit whenever rights guaranteed by that Title have been violated.[13] At the same time, however, § 102 explicitly limits the relief that may be ordered by a district court to that which is "appropriate" to any given situation. See Hall v. Cole, 412 U.S. 1, 10-11 (1973). B Nor would it be appropriate to interpret the enforcement and remedial provisions of Title I in isolation. In particular, *539 Title IV of the LMRDA specifically regulates the conduct of elections for union officers, and therefore protects many of the same rights as does Title I. See §§ 401-403, 29 U.S. C. §§ 481-483. Title IV "sets up a statutory scheme governing the election of union officers, fixing the terms during which they hold office, requiring that elections be by secret ballot, regulating the handling of campaign literature, requiring a reasonable opportunity for the nomination of candidates, authorizing unions to fix `reasonable qualifications uniformly imposed' for candidates, and attempting to guarantee fair union elections in which all the members are allowed to participate." Calhoon v. Harvey, 379 U.S. 134, 140 (1964).[14] In general terms, "Title IV's special function in furthering the overall goals of the LMRDA is to insure `free and democratic' elections," Wirtz v. Glass Bottle Blowers Assn., 389 U.S. 463, 470 (1968), an interest "vital" not only to union members but also to the general public, id., at 475. See Wirtz v. Laborers, 389 U.S. 477, 483 (1968). Although Congress meant to further this basic policy with a minimum of interference in the internal affairs of unions, see Calhoon, supra, at 140, § 402 of Title IV contains its own comprehensive administrative and judicial procedure for enforcing the standards established in that Title of the Act, 29 U.S. C. § 482. See Dunlop v. Bachowski, 421 U.S. 560 (1975); Trbovich v. Mine Workers, 404 U.S. 528, 531 (1972); Calhoon, supra, at 138-140. "Any union member who alleges a violation [of Title IV] may initiate the enforcement procedure. He must first exhaust any internal remedies available under the constitution and bylaws of his union. Then he may file a complaint with the Secretary of Labor, who `shall investigate' the complaint. Finally, if the Secretary finds probable cause to believe a violation has occurred, he `shall . . . bring a civil action against the labor organization' *540 in federal district court, to set aside the election if it has already been held, and to direct and supervise a new election." Trbovich, supra, at 531 (quoting § 402, 29 U.S. C. § 482). See Calhoon, supra, at 140. Significantly, the court may invalidate an election already held, and order the Secretary to supervise a new election, only if the violation of Title IV "may have affected the outcome" of the previous election. § 402(c), 29 U.S. C. § 482(c). Congress also included in Title IV an exclusivity provision that explains the relationship between the enforcement procedures established for violations of Title IV and the remedies available for violations of potentially overlapping state and federal laws. In relevant part, § 403 of the LMRDA provides: "Existing rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections prior to the conduct thereof shall not be affected by the provisions of this title. The remedy provided by this title for challenging an election already conducted shall be exclusive." 73 Stat. 534, 29 U.S. C. § 483. Relying on this provision, and on the comprehensive nature of the enforcement scheme established by § 402, we have held that Title IV "sets up an exclusive method for protecting Title IV rights," and that Congress "decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV." Calhoon, supra, at 140.[15] III We have not previously determined exactly how the exclusivity of Title IV's remedial scheme for enforcing rights guaranteed by that Title might affect remedies available to enforce other rights, such as those protected by Title I. Nor *541 has Congress provided any definitive answers in this area. This case requires, however, that we decide whether Title I remedies are available to aggrieved union members while a union election is being conducted. A It is useful to begin by noting what the plain language of the Act clearly establishes about the relationship between the remedies provided under Title I and Title IV. First, the exclusivity provision included in § 403 of Title IV plainly bars Title I relief when an individual union member challenges the validity of an election that has already been completed.[16] Second, the full panoply of Title I rights is available to individual union members "prior to the conduct" of a union election. As with the plain language of most federal labor laws, however, this simplicity is more apparent than real. Indeed, by its own terms, the provision offers no obvious solution to what remedies are available during the course of a union election, the issue presented by this case. Even if the plain meaning of the "already conducted" language of § 403 could be read not to preclude other remedies until the actual tabulation and certification of ballots have been completed, we would hesitate to find such an interpretation determinative. First, such an approach would ignore the limitation on judicial remedies that Congress included in Title I, which allows a district court to award only "appropriate" relief. Moreover, we have previously "cautioned against a literal reading" of the LMRDA. Wirtz v. Glass Bottle Blowers Assn., supra, at 468. Like much federal *542 labor legislation, the statute was "the product of conflict and compromise between strongly held and opposed views, and its proper construction frequently requires consideration of its wording against the background of its legislative history and in the light of the general objectives Congress sought to achieve." Ibid. (citing National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 619 (1967)). See Sadlowski, 457 U. S., at 111. Indeed, in many ways this admonition applies with its greatest force to the interaction between Title I and Title IV of the LMRDA, if only because of the unusual way in which the legislation was enacted.[17] Nor does the legislative history of the LMRDA provide any definitive indication of how Congress intended § 403 to apply to Title I suits while an election is being conducted. Throughout the legislative debate on this provision, the exclusivity of Title IV was predominantly, if not only, considered in the context of a union election, such as one held at a union meeting, that would take place for a discrete and limited period of time.[18] Thus, Congress did not explicitly consider how the exclusivity provision might apply to an election that takes several weeks or months to complete. Moreover, *543 the legislative history that is available on the meaning of § 403 is largely derived from congressional action that occurred prior to the time that Title I was added to the LMRDA. See, e. g., S. Rep. No. 187, at 21; id., at 104 (minority views); H. R. Rep. No. 741, 86th Cong., 1st Sess., 17 (1959). The interplay between the rights and remedies provided to union members by Title I, and the exclusivity provision already included in Title IV, therefore received little, if any, attention from the Congress. Cf. H. R. Conf. Rep. No. 1147, at 35 (Conference Report, written after both Titles were included in the Act, but failing to explain what remedies are available during an election). B Despite this absence of conclusive evidence in the legislative history, the primary objectives that controlled congressional enactment of the LMRDA provide important guidance for our consideration of the availability of Title I remedies during a union election. In particular, throughout the congressional discussions preceding enactment of both Title I and Title IV, Congress clearly indicated its intent to consolidate challenges to union elections with the Secretary of Labor, and to have the Secretary supervise any new elections necessitated by violations of the Act. This strongly suggests that, even when Title I violations are properly alleged and proved, Congress would not have considered a court order requiring and judicially supervising a new election to be "appropriate" relief under Title I. At the same time, there is nothing in the legislative history suggesting that Congress intended to foreclose all access to federal courts under Title I during an election, especially when a statutory violation could be corrected without any major delay or disruption to an ongoing election. We therefore conclude that whether a Title I suit may properly be maintained by individual union members during the course of a union election depends upon the nature of the relief sought by the Title I claimants. *544 Throughout its consideration of the LMRDA, Congress clearly intended to lodge exclusive responsibility for post-election suits challenging the validity of a union election with the Secretary of Labor. The legislative history of Title IV consistently echoes this theme. For example, the election provisions contained in the Committee bill as originally reported to the full Senate gave the Secretary exclusive authority to enforce Title IV and to supervise whatever new elections might be needed because of violations of its provisions. S. 1555, 86th Cong., 1st Sess., §§ 302-303 (1959). As the Report of the Senate Committee on Labor and Public Welfare explained: "[S]ince the bill provides an effective and expeditious remedy for overthrowing an improperly held election and holding a new election, the Federal remedy is made the sole remedy and private litigation would be precluded." S. Rep. No. 187, at 21.[19] The bill that was finally passed by the Senate retained these procedures for violations of Title IV. *545 In the House, three separate bills were introduced, with all three containing substantially similar enforcement procedures for violations of Title IV. Unlike the Senate bill, the House bills permitted an aggrieved union member to file suit in federal district court to enforce his Title IV rights. See, e. g., H. R. 8400, 86th Cong., 1st Sess., § 402 (1959) (Landrum-Griffin bill). Significantly, however, even these bills provided that the Secretary of Labor would supervise any new elections ordered by the court. See, e. g., H. R. Rep. No. 741, supra, at 17 (if district court finds relevant statutory violation, the court should "declare the election, if any, to be void, and direct the conduct of a new election under the supervision of the Secretary of Labor"). Thus, even before the Conference Committee adopted the Title IV enforcement procedures included in the Senate bill, see H. R. Conf. Rep. No. 1147, at 35, both Houses of Congress had consistently indicated their intent to have the Secretary of Labor supervise any new union elections necessitated by the Act.[20] Moreover, nothing in the flurry of activity that surrounded enactment of Title I, see supra, at 537-538, and n. 12, indicates that Congress intended that Title to reverse this consistent opposition to court supervision of union elections. Although the enactment of Title I offered additional protection to union members, including the establishment of various statutory safeguards effective during the course of a union election, there is no direct evidence to suggest that Congress believed that enforcement of Title I would either require or allow courts to pre-empt the expertise of the Secretary and *546 supervise their own elections. In the absence of such legislative history, and given the clear congressional preference expressed in Title IV for supervision of new elections by the Secretary of Labor, we are compelled to conclude that Congress did not consider court supervision of union elections to be an "appropriate" remedy for a Title I suit filed during the course of a union election. § 102, 29 U.S. C. § 412. That is not to say that a court has no jurisdiction over otherwise proper Title I claims that are filed during the course of a lengthy union election. The important congressional policies underlying enactment of Title I, see supra, at 536-537, likewise compel us to conclude that appropriate relief under Title I may be awarded by a court while an election is being conducted. Individual union members may properly allege violations of Title I that are easily remediable under that Title without substantially delaying or invalidating an ongoing election. For example, union members might claim that they did not receive election ballots distributed by the union because of their opposition to the incumbent officers running for reelection. Assuming that such union members prove a statutory violation under Title I, a court might appropriately order the union to forward ballots to the claimants before completion of the election. To foreclose a court from ordering such Title I remedies during an election would not only be inefficient, but would also frustrate the purposes that Congress sought to serve by including Title I in the LMRDA. Indeed, eliminating all Title I relief in this context might preclude aggrieved union members from ever obtaining relief for statutory violations, since the more drastic remedies under Title IV are ultimately dependent upon a showing that a violation "may have affected the outcome" of the election, § 402(c), 29 U.S. C. § 482(c).[21] *547 C Our conclusion that appropriate Title I relief during the course of a union election does not include the invalidation of *548 an ongoing election or court supervision of a new election finds further support in our prior cases interpreting the LMRDA, and in the underlying policies of the Act that have controlled those decisions. In Calhoon v. Harvey, 379 U.S. 134 (1964), for example, we were faced with a pre-election challenge to several union rules that controlled eligibility to run and nominate others for union office. The claimants in that case asked the court to enjoin the union from preparing for or conducting any election until the rules were revised. We first concluded that in substance the claims alleged violations of Title IV rather than Title I, because the latter only protects union members against the discriminatory application of union rules. Then, given that "Congress . . . decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV," id., at 140; see supra, at 540, we held that the District Court could not invoke its jurisdiction under Title I to hear Title IV claims. We relied for our conclusion in part on Congress' intent "to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts." 379 U.S., at 140. See also ibid. ("It is apparent that Congress decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest"). In several subsequent decisions, we also relied on the important role played by the Secretary in enforcing Title IV *549 violations and in supervising new union elections. See, e. g., Wirtz v. Glass Bottle Blowers Assn., 389 U. S., at 473-475; Wirtz v. Laborers, 389 U. S., at 482-484; Wirtz v. Hotel Employees, 391 U.S. 492 (1968). At the same time, we noted that another primary goal of Congress was to maximize the " `amount of independence and self-government' " granted to unions. See Glass Bottle Blowers Assn., supra, at 472-473 (quoting S. Rep. No. 187, at 21); Hodgson v. Steelworkers, 403 U.S. 333 (1971). As we more fully explained in Trbovich v. Mine Workers, 404 U.S. 528 (1972), Congress made suit by the Secretary under Title IV the exclusive post-election remedy for challenges to an election "(1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election." Id., at 532. Thus, exclusive postelection enforcement by the Secretary serves "as a device for eliminating frivolous complaints and consolidating meritorious ones." Id., at 535. Consistent with these policies, Trbovich cited Calhoon, supra, at 140, for the proposition that "§ 403 prohibits union members from initiating a private suit to set aside an election." 404 U.S., at 531. Although this somewhat overstated our holding in Calhoon, which was limited to the exclusivity of postelection suits by the Secretary for violations of Title IV, we believe that the policies supporting Congress' decision to consolidate Title IV suits with the Secretary are equally applicable to Title I suits that seek to "set aside an election."[22] Although the important protections *550 provided to union members by Title I should not easily be precluded, the equally strong policies vesting the Secretary with exclusive supervisory authority over new union elections require that Title I remedies during the course of an election be limited to this extent. In sum, whether suits alleging violations of Title I of the LMRDA may properly be maintained during the course of a union election depends upon the appropriateness of the remedy required to eliminate the claimed statutory violation. If the remedy sought is invalidation of the election already being conducted with court supervision of a new election, then union members must utilize the remedies provided by Title IV. For less intrusive remedies sought during an election, however, a district court retains authority to order appropriate relief under Title I. IV The procedural history of this case clearly demonstrates the undesirable consequences that follow from judicial supervision of a union election. The respondents filed suit after Local 82 had distributed election ballots to its members, but before some of the ballots had been returned or any of the ballots had been counted. Then, less than 24 hours before the election would have been completed and the ballots tabulated, the District Court issued a temporary restraining order that brought the election to a halt. This was followed by several months of negotiations between the parties and hearings before the District Court. Finally, the court issued *551 an order declaring the interrupted election invalid, and setting forth elaborate procedures to be followed during a new election. Several aspects of these proceedings demonstrate why they are inconsistent with the policies underlying the LMRDA. For example, the temporary restraining order and preliminary injunction issued by the court delayed the union election that was originally scheduled for December 1980 for one full year. Among other consequences, this left the incumbent union officers in power beyond the scheduled expiration of their terms. Cf. § 401(b), 29 U.S. C. § 481(b) (officers shall be elected not less than once every three years). If the procedures under Title IV had been properly followed, the December 1980 election would have been presumed valid, see § 402(a), 29 U.S. C. § 482(a), and new officers would have replaced the incumbents. Moreover, the expertise of the Secretary in supervising elections was completely ignored. Not only did the court acting alone decide that a new election was required, but its order established procedures for that election and appointed outside arbitrators to supervise their implementation. This action by the District Court directly interfered with the Secretary's exclusive responsibilities for supervising new elections, and was inconsistent with the basic objectives of the LMRDA enforcement scheme. V We conclude that the District Court overstepped the bounds of "appropriate" relief under Title I of the LMRDA when it enjoined an ongoing union election and ordered that a new election be held pursuant to court-ordered procedures. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.[23] It is so ordered.

The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Act), as amended, 29 U.S. C. 401 et seq., was Congress' first major attempt to regulate the internal affairs of labor unions. Title I of the Act provides a statutory "Bill of Rights" for union members, including various protections for members involved in union elections, with enforcement and appropriate remedies available in district court. Title IV, in contrast, provides an elaborate postelection procedure aimed solely at protecting union democracy through free and democratic elections, with primary responsibility for enforcement lodged with the Secretary of Labor. Resolution of the question presented by this case requires that we address the conflict that exists between the separate enforcement mechanisms included in these two Titles. In particular, we must determine whether suits alleging violations of Title I may properly be maintained in district court during the course of a union election. The Court of Appeals approved a preliminary injunction issued by the District Court that enjoined an ongoing union *529 election and ordered the staging of a new election pursuant to procedures promulgated by the court. After reviewing the complex statutory scheme created by Congress, we conclude that such judicial interference in an ongoing union election is not appropriate relief under 102 of Title I, 29 U.S. C. 412. We therefore reverse the Court of Appeals. I Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen, and Packers (Local 82) represents approximately 700 employees engaged in the furniture moving business in the Boston, Mass., area.[1] The union is governed by a seven-member executive board whose officers, pursuant to 401(b) of the LMRDA, 29 U.S. C. 481(b), must be chosen by election no less than once every three years. These elections, consistent with the executive board's discretion under the union's bylaws and constitution, have traditionally been conducted by mail referendum balloting. The dispute giving rise to the present case stems from the union election that was regularly scheduled for the last two months of 1980. On November 9, 1980, Local 82 held a meeting to nominate candidates for positions on its executive board. The meeting generated considerable interest, in part because dissident members of the union were attempting to turn the incumbent union officials out of office. Two aspects of the controversial meeting are especially important for present purposes. First, admission to the meeting was restricted to those members who could produce a computerized receipt showing that their dues had been paid up to date. Several union members, including respondent Jerome Crowley, were prohibited from entering the meeting because they did not have such dues receipts in their possession. Second, during the actual *530 nominations process, there was disagreement relating to the office for which respondent John Lynch had been nominated. At the close of nominations, petitioner Bart Griffiths, the union's incumbent secretary-treasurer, declared himself the only candidate nominated for that office; at the same time, he included Lynch among the candidates selected to run for union president. Several dissatisfied members of the union, now respondents before this Court,[2] filed a protest with the union. On November 20, their protest was denied by Local 82.[3] Election ballots were thereafter distributed to all members of the union, who were instructed to mark and return the ballots by mail so that they would arrive in a designated post office box by 9 a. m. on December 13, 1980, at which time they were scheduled to be counted. Respondent Lynch's name appeared on the ballot as a candidate for president, and not for secretary-treasurer. On December 1, 1980, after the distribution of ballots had been completed, the respondents filed this action in the United States District Court for the District of Massachusetts. They alleged, inter alia, that Local 82 and its officers had violated several provisions of Title I of the LMRDA, and sought a preliminary injunction. In particular, the respondents claimed that restricting admission to the nominations meeting to those members who could produce computerized dues receipts violated their "equal rights to nominate * candidates [and] to attend membership meetings" under 101(a)(1) of the Act,[4] as well as their right freely to express views at meetings of the union under 101(a)(2) of the Act.[5] They also alleged that the union and its officers had violated 101(a)(1) by failing to recognize respondent Lynch as a candidate for secretary-treasurer.[6] *532 After preliminary papers were filed, on December 12 the District Court issued a temporary restraining order to preserve the status quo and to protect its own jurisdiction. See App. 40-47. Given that the next morning (December 13) was the pre-established deadline for voting, many, if not most, of the ballots had already been returned by the union's voting members. Nonetheless, the court noted that federal-court jurisdiction was available under 102 of Title I, 29 U.S. C. 412, for claims alleging discriminatory application of union rules. Moreover, the court's order specifically required that the ballots be sealed and delivered to the court, thereby preventing the petitioners from counting the ballots until a final determination could be made on the motion for a preliminary injunction. Several days of hearings on the preliminary injunction, and several months of negotiations concerning an appropriate court order to accompany that injunction, followed. Finally, on July 13, the District Court issued a preliminary injunction accompanied by a memorandum opinion. The court first addressed more fully the petitioners' argument that, because the challenged conduct concerned the procedures for conducting union elections, the respondents' exclusive remedy was to file a complaint with the Secretary of Labor under Title IV. The court rejected this argument, noting that, "at least with respect to actions challenging pre-election conduct, Title I of the LMRDA establishes an alternative enforcement mechanism for remedying conduct interfering with a member's right to engage in the activities associated with union democracy." Therefore, the court concluded, it could properly invoke its jurisdiction under Title I, if only for those claims concerning dues receipts and the nomination of respondent Lynch that are now before this Court. Because the suit concerned disputes arising out of a nominations meeting conducted in preparation for a union election, and given that the court had issued a temporary *533 restraining order barring actual completion of the election, Title I jurisdiction could properly be asserted over this "pre-election conduct." n. 12. After concluding that the respondents had demonstrated a substantial likelihood of success on their claims,[7] the court issued its comprehensive injunction.[8] The court explicitly intended to issue an order that "interfere[d] as little as possible with the nomination and election procedures" required by the union's constitution and bylaws, ; moreover, the terms of the preliminary injunction were derived in large part from an ongoing process of negotiations and hearings that the court had conducted with the parties during the preceding six months. Nonetheless, the order declared the ballots cast in December 1980 to be "legally without effect," n., and provided detailed procedures to be followed by the union during a new nominations meeting and a subsequent election. Among other things, the order selected an outside group of arbitrators to conduct and supervise the election, and set forth eligibility requirements for attending the nominations meeting, being a candidate for office, and *534 voting. The order also provided that it would remain in effect until further order of the District Court. The petitioners appealed, and the Secretary of Labor, who until then had not participated in the proceedings, intervened on their behalf. They argued that the District Court lacked authority under Title I to enjoin the tabulation of ballots and order new nominations and elections under court supervision. The Court of Appeals rejected these arguments, however, and affirmed in all respects. It agreed with the District Court that Title I remedies are not foreclosed when violations of Title I occur during the course of an election. The court also held that 403 of the Act, which explicitly provides that Title IV's remedies are exclusive for elections that are "already conducted," 29 U.S. C. does not apply until all the ballots have actually been tabulated.[9] Writing in dissent, Judge Campbell was "unable to read Title I as extending so far as to allow a district court, once balloting has commenced, to invalidate an election and order a new one under its supervision and under terms and conditions extemporized by the courts and parties." He believed that "the proper accommodation between Title I and Title IV requires consideration not only of the stage which the election process has reached but [also] the nature of the relief" requested and granted. Because of the confusion evident among the lower federal courts that have tried to reconcile the remedial provisions *535 under Title I and Title IV of the Act,[10] we granted certiorari. We now reverse.[11] II To examine fully the relationship between the respective enforcement provisions of Title I and Title IV of the *536 LMRDA, it is necessary first to summarize the relevant statutory provisions and Congress' principal purposes in their enactment. The LMRDA was "the product of congressional concern with widespread abuses of power by union leadership." Although the Act "had a history tracing back more than two decades," ib and was directly generated by several years of congressional hearings, see S. Rep. No. 187, 86th Cong., 1st Sess., 2 (1959) (hereafter S. Rep. No. 187), many specific provisions did not find their way into the Act until the proposed legislation was fully considered on the floor of the 456 U.S., at n. 4. It should not be surprising, therefore, that the interaction between various provisions that were finally included in the Act has generated considerable uncertainty. A Chief among the causes for this confusion is Title I of the Act, which provides union members with an exhaustive "Bill of Rights" enforceable in federal court. 101-105, 29 U.S. C. 411-415. In particular, Title I is designed to guarantee every union member equal rights to vote and otherwise participate in union decisions, freedom from unreasonable *537 restrictions on speech and assembly, and protection from improper discipline. See at -436; Given these purposes, there can be no doubt that the protections afforded by Title I extend to union members while they participate in union elections. As we have previously noted: "Congress adopted the freedom of speech and assembly provision [ 101(a)(2), 29 U.S. C. 411(a)(2)] in order to promote union democracy. It recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal. Congress also recognized that this freedom is particularly critical, and deserves vigorous protection, in the context of election campaigns. For it is in elections that members can wield their power, and directly express their approval or disapproval of the union leadership." As first introduced by Senator McClellan on the floor of the see 105 Cong. Rec. 6469-6476, 6492-6493 (1959), Title I empowered the Secretary of Labor to seek injunctions and other relief in federal district court to enforce the rights guaranteed to union members. A few days later, however, the McClellan amendment was replaced by a substitute amendment offered by Senator Kuchel. See Among the principal changes made by this substitute was to provide for enforcement of Title I through suits by individual union members in federal district court.[12] As so amended, the legislation *538 was endorsed in the by a vote of 77-14, and was quickly accepted without substantive change by the House, see H. R. 8400, 86th Cong., 1st Sess., 102 (1959); H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 31 (1959) (hereafter H. R. Conf. Rep. No. 1147). In relevant part, therefore, 102 of the Act now provides: "Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate." 29 U.S. C. 412. Standing by itself, this jurisdictional provision suggests that individual union members may properly maintain a Title I suit whenever rights guaranteed by that Title have been violated.[13] At the same time, however, 102 explicitly limits the relief that may be ordered by a district court to that which is "appropriate" to any given situation. See B Nor would it be appropriate to interpret the enforcement and remedial provisions of Title I in isolation. In particular, *539 Title IV of the LMRDA specifically regulates the conduct of elections for union officers, and therefore protects many of the same rights as does Title I. See 401-403, 29 U.S. C. 481-. Title IV "sets up a statutory scheme governing the election of union officers, fixing the terms during which they hold office, requiring that elections be by secret ballot, regulating the handling of campaign literature, requiring a reasonable opportunity for the nomination of candidates, authorizing unions to fix `reasonable qualifications uniformly imposed' for candidates, and attempting to guarantee fair union elections in which all the members are allowed to participate."[14] In general terms, "Title IV's special function in furthering the overall goals of the LMRDA is to insure `free and democratic' elections," an interest "vital" not only to union members but also to the general public, See Although Congress meant to further this basic policy with a minimum of interference in the internal affairs of unions, see at 402 of Title IV contains its own comprehensive administrative and judicial procedure for enforcing the standards established in that Title of the Act, 29 U.S. C. 482. See ; ; at 138-. "Any union member who alleges a violation [of Title IV] may initiate the enforcement procedure. He must first exhaust any internal remedies available under the constitution and bylaws of his union. Then he may file a complaint with the Secretary of Labor, who `shall investigate' the complaint. Finally, if the Secretary finds probable cause to believe a violation has occurred, he `shall bring a civil action against the labor organization' *540 in federal district court, to set aside the election if it has already been held, and to direct and supervise a new election." Trbovich, at (quoting 402, 29 U.S. C. 482). See at Significantly, the court may invalidate an election already held, and order the Secretary to supervise a new election, only if the violation of Title IV "may have affected the outcome" of the previous election. 402(c), 29 U.S. C. 482(c). Congress also included in Title IV an exclusivity provision that explains the relationship between the enforcement procedures established for violations of Title IV and the remedies available for violations of potentially overlapping state and federal laws. In relevant part, 403 of the LMRDA provides: "Existing rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections prior to the conduct thereof shall not be affected by the provisions of this title. The remedy provided by this title for challenging an election already conducted shall be exclusive." 29 U.S. C. Relying on this provision, and on the comprehensive nature of the enforcement scheme established by 402, we have held that Title IV "sets up an exclusive method for protecting Title IV rights," and that Congress "decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV." at[15] III We have not previously determined exactly how the exclusivity of Title IV's remedial scheme for enforcing rights guaranteed by that Title might affect remedies available to enforce other rights, such as those protected by Title I. Nor *541 has Congress provided any definitive answers in this area. This case requires, however, that we decide whether Title I remedies are available to aggrieved union members while a union election is being conducted. A It is useful to begin by noting what the plain language of the Act clearly establishes about the relationship between the remedies provided under Title I and Title IV. First, the exclusivity provision included in 403 of Title IV plainly bars Title I relief when an individual union member challenges the validity of an election that has already been completed.[16] Second, the full panoply of Title I rights is available to individual union members "prior to the conduct" of a union election. As with the plain language of most federal labor laws, however, this simplicity is more apparent than real. Indeed, by its own terms, the provision offers no obvious solution to what remedies are available during the course of a union election, the issue presented by this case. Even if the plain meaning of the "already conducted" language of 403 could be read not to preclude other remedies until the actual tabulation and certification of ballots have been completed, we would hesitate to find such an interpretation determinative. First, such an approach would ignore the limitation on judicial remedies that Congress included in Title I, which allows a district court to award only "appropriate" relief. Moreover, we have previously "cautioned against a literal reading" of the LMRDA. Like much federal *542 labor legislation, the statute was "the product of conflict and compromise between strongly held and opposed views, and its proper construction frequently requires consideration of its wording against the background of its legislative history and in the light of the general objectives Congress sought to achieve." ). See Indeed, in many ways this admonition applies with its greatest force to the interaction between Title I and Title IV of the LMRDA, if only because of the unusual way in which the legislation was enacted.[17] Nor does the legislative history of the LMRDA provide any definitive indication of how Congress intended 403 to apply to Title I suits while an election is being conducted. Throughout the legislative debate on this provision, the exclusivity of Title IV was predominantly, if not only, considered in the context of a union election, such as one held at a union meeting, that would take place for a discrete and limited period of time.[18] Thus, Congress did not explicitly consider how the exclusivity provision might apply to an election that takes several weeks or months to complete. Moreover, *543 the legislative history that is available on the meaning of 403 is largely derived from congressional action that occurred prior to the time that Title I was added to the LMRDA. See, e. g., S. Rep. No. 187, at 21; ; H. R. Rep. No. 86th Cong., 1st Sess., 17 (1959). The interplay between the rights and remedies provided to union members by Title I, and the exclusivity provision already included in Title IV, therefore received little, if any, attention from the Congress. Cf. H. R. Conf. Rep. No. 1147, at 35 (Conference Report, written after both Titles were included in the Act, but failing to explain what remedies are available during an election). B Despite this absence of conclusive evidence in the legislative history, the primary objectives that controlled congressional enactment of the LMRDA provide important guidance for our consideration of the availability of Title I remedies during a union election. In particular, throughout the congressional discussions preceding enactment of both Title I and Title IV, Congress clearly indicated its intent to consolidate challenges to union elections with the Secretary of Labor, and to have the Secretary supervise any new elections necessitated by violations of the Act. This strongly suggests that, even when Title I violations are properly alleged and proved, Congress would not have considered a court order requiring and judicially supervising a new election to be "appropriate" relief under Title I. At the same time, there is nothing in the legislative history suggesting that Congress intended to foreclose all access to federal courts under Title I during an election, especially when a statutory violation could be corrected without any major delay or disruption to an ongoing election. We therefore conclude that whether a Title I suit may properly be maintained by individual union members during the course of a union election depends upon the nature of the relief sought by the Title I claimants. *544 Throughout its consideration of the LMRDA, Congress clearly intended to lodge exclusive responsibility for post-election suits challenging the validity of a union election with the Secretary of Labor. The legislative history of Title IV consistently echoes this theme. For example, the election provisions contained in the Committee bill as originally reported to the full gave the Secretary exclusive authority to enforce Title IV and to supervise whatever new elections might be needed because of violations of its provisions. S. 1555, 86th Cong., 1st Sess., 302-303 (1959). As the Report of the Committee on Labor and Public Welfare explained: "[S]ince the bill provides an effective and expeditious remedy for overthrowing an improperly held election and holding a new election, the Federal remedy is made the sole remedy and private litigation would be precluded." S. Rep. No. 187, at 21.[19] The bill that was finally passed by the retained these procedures for violations of Title IV. *545 In the House, three separate bills were introduced, with all three containing substantially similar enforcement procedures for violations of Title IV. Unlike the bill, the House bills permitted an aggrieved union member to file suit in federal district court to enforce his Title IV rights. See, e. g., H. R. 8400, 86th Cong., 1st Sess., 402 (1959) (Landrum-Griffin bill). Significantly, however, even these bills provided that the Secretary of Labor would supervise any new elections ordered by the court. See, e. g., H. R. Rep. No. Thus, even before the Conference Committee adopted the Title IV enforcement procedures included in the bill, see H. R. Conf. Rep. No. 1147, at 35, both Houses of Congress had consistently indicated their intent to have the Secretary of Labor supervise any new union elections necessitated by the Act.[20] Moreover, nothing in the flurry of activity that surrounded enactment of Title I, see and n. 12, indicates that Congress intended that Title to reverse this consistent opposition to court supervision of union elections. Although the enactment of Title I offered additional protection to union members, including the establishment of various statutory safeguards effective during the course of a union election, there is no direct evidence to suggest that Congress believed that enforcement of Title I would either require or allow courts to pre-empt the expertise of the Secretary and *546 supervise their own elections. In the absence of such legislative history, and given the clear congressional preference expressed in Title IV for supervision of new elections by the Secretary of Labor, we are compelled to conclude that Congress did not consider court supervision of union elections to be an "appropriate" remedy for a Title I suit filed during the course of a union election. 102, 29 U.S. C. 412. That is not to say that a court has no jurisdiction over otherwise proper Title I claims that are filed during the course of a lengthy union election. The important congressional policies underlying enactment of Title I, see likewise compel us to conclude that appropriate relief under Title I may be awarded by a court while an election is being conducted. Individual union members may properly allege violations of Title I that are easily remediable under that Title without substantially delaying or invalidating an ongoing election. For example, union members might claim that they did not receive election ballots distributed by the union because of their opposition to the incumbent officers running for reelection. Assuming that such union members prove a statutory violation under Title I, a court might appropriately order the union to forward ballots to the claimants before completion of the election. To foreclose a court from ordering such Title I remedies during an election would not only be inefficient, but would also frustrate the purposes that Congress sought to serve by including Title I in the LMRDA. Indeed, eliminating all Title I relief in this context might preclude aggrieved union members from ever obtaining relief for statutory violations, since the more drastic remedies under Title IV are ultimately dependent upon a showing that a violation "may have affected the outcome" of the election, 402(c), 29 U.S. C. 482(c).[21] *547 C Our conclusion that appropriate Title I relief during the course of a union election does not include the invalidation of *548 an ongoing election or court supervision of a new election finds further support in our prior cases interpreting the LMRDA, and in the underlying policies of the Act that have controlled those decisions. In for example, we were faced with a pre-election challenge to several union rules that controlled eligibility to run and nominate others for union office. The claimants in that case asked the court to enjoin the union from preparing for or conducting any election until the rules were revised. We first concluded that in substance the claims alleged violations of Title IV rather than Title I, because the latter only protects union members against the discriminatory application of union rules. Then, given that "Congress decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV," at ; see we held that the District Court could not invoke its jurisdiction under Title I to hear Title IV claims. We relied for our conclusion in part on Congress' intent "to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts." 379 U.S., at See also In several subsequent decisions, we also relied on the important role played by the Secretary in enforcing Title IV *549 violations and in supervising new union elections. See, e. g., -475; -484; At the same time, we noted that another primary goal of Congress was to maximize the " `amount of independence and self-government' " granted to unions. See Glass Bottle Blowers ; As we more fully explained in Congress made suit by the Secretary under Title IV the exclusive post-election remedy for challenges to an election "(1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election." Thus, exclusive postelection enforcement by the Secretary serves "as a device for eliminating frivolous complaints and consolidating meritorious ones." Consistent with these policies, Trbovich cited at for the proposition that " 403 prohibits union members from initiating a private suit to set aside an election." 404 U.S., at Although this somewhat overstated our holding in which was limited to the exclusivity of postelection suits by the Secretary for violations of Title IV, we believe that the policies supporting Congress' decision to consolidate Title IV suits with the Secretary are equally applicable to Title I suits that seek to "set aside an election."[22] Although the important protections *550 provided to union members by Title I should not easily be precluded, the equally strong policies vesting the Secretary with exclusive supervisory authority over new union elections require that Title I remedies during the course of an election be limited to this extent. In sum, whether suits alleging violations of Title I of the LMRDA may properly be maintained during the course of a union election depends upon the appropriateness of the remedy required to eliminate the claimed statutory violation. If the remedy sought is invalidation of the election already being conducted with court supervision of a new election, then union members must utilize the remedies provided by Title IV. For less intrusive remedies sought during an election, however, a district court retains authority to order appropriate relief under Title I. IV The procedural history of this case clearly demonstrates the undesirable consequences that follow from judicial supervision of a union election. The respondents filed suit after Local 82 had distributed election ballots to its members, but before some of the ballots had been returned or any of the ballots had been counted. Then, less than 24 hours before the election would have been completed and the ballots tabulated, the District Court issued a temporary restraining order that brought the election to a halt. This was followed by several months of negotiations between the parties and hearings before the District Court. Finally, the court issued *551 an order declaring the interrupted election invalid, and setting forth elaborate procedures to be followed during a new election. Several aspects of these proceedings demonstrate why they are inconsistent with the policies underlying the LMRDA. For example, the temporary restraining order and preliminary injunction issued by the court delayed the union election that was originally scheduled for December 1980 for one full year. Among other consequences, this left the incumbent union officers in power beyond the scheduled expiration of their terms. Cf. 401(b), 29 U.S. C. 481(b) (officers shall be elected not less than once every three years). If the procedures under Title IV had been properly followed, the December 1980 election would have been presumed valid, see 402(a), 29 U.S. C. 482(a), and new officers would have replaced the incumbents. Moreover, the expertise of the Secretary in supervising elections was completely ignored. Not only did the court acting alone decide that a new election was required, but its order established procedures for that election and appointed outside arbitrators to supervise their implementation. This action by the District Court directly interfered with the Secretary's exclusive responsibilities for supervising new elections, and was inconsistent with the basic objectives of the LMRDA enforcement scheme. V We conclude that the District Court overstepped the bounds of "appropriate" relief under Title I of the LMRDA when it enjoined an ongoing union election and ordered that a new election be held pursuant to court-ordered procedures. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.[23] It is so ordered.

Justice Scalia

concurring

Firestone Tire & Rubber Co. v. Bruch

https://www.courtlistener.com/opinion/112197/firestone-tire-rubber-co-v-bruch/

https://www.courtlistener.com/api/rest/v3/clusters/112197/

1988-032

I join the judgment of the Court and Parts I and II of its opinion. I agree with its disposition but not all of its reasoning regarding Part III. The Court holds that a person with a colorable claim is one who " `may become eligible' for benefits" within the meaning of the statutory definition of "participant," because, it reasons, such a claim raises the possibility that "he or she will prevail in a suit for benefits." Ante, at 117. The relevant portion of the definition, however, refers to an employee "who is or may become eligible to receive a benefit." There is an obvious parallelism here: one "may become" eligible by acquiring, in the future, the same characteristic of eligibility that someone who "is" eligible now possesses. And I find it contrary to normal usage to think that the characteristic of "being" eligible consists of "having prevailed in a suit for benefits." Eligibility exists not merely during the brief period between formal judgment of entitlement and payment of benefits. Rather, one is eligible whether or not he has yet been adjudicated to be — and, similarly, one can become eligible before he is adjudicated to be. It follows that the phrase "may become eligible" has nothing to do with the probabilities of winning a suit. I think that, properly read, the definition of "participant" embraces those whose benefits have vested, and those who (by reason of current or former employment) have some potential to receive the vesting of benefits in the future, but not those who have a good argument that benefits have vested even though they have not. Applying the definition in this fashion would mean, of course, that if the employer guesses right that a person with a colorable claim is in fact not entitled to benefits, he can deny that person the information required to be provided under 29 U.S. C. § 1024(b)(4) without paying the $100-a-day damages assessable for breach of that obligation, 29 U.S. C. § 1132(c)(1)(B) (1982 ed., Supp. IV). Since, however, no employer *120 sensible enough to consult the law would be senseless enough to take that risk, giving the term its defined meaning would produce precisely the same incentive for disclosure as the Court's opinion.

I join the judgment of the Court and Parts I and II of its opinion. I agree with its disposition but not all of its reasoning regarding Part III. The Court holds that a person with a colorable claim is one who " `may become eligible' for benefits" within the meaning of the statutory definition of "participant," because, it reasons, such a claim raises the possibility that "he or she will prevail in a suit for benefits." Ante, at 117. The relevant portion of the definition, however, refers to an employee "who is or may become eligible to receive a benefit." There is an obvious parallelism here: one "may become" eligible by acquiring, in the future, the same characteristic of eligibility that someone who "is" eligible now possesses. And I find it contrary to normal usage to think that the characteristic of "being" eligible consists of "having prevailed in a suit for benefits." Eligibility exists not merely during the brief period between formal judgment of entitlement and payment of benefits. Rather, one is eligible whether or not he has yet been adjudicated to be — and, similarly, one can become eligible before he is adjudicated to be. It follows that the phrase "may become eligible" has nothing to do with the probabilities of winning a suit. I think that, properly read, the definition of "participant" embraces those whose benefits have vested, and those who (by reason of current or former employment) have some potential to receive the vesting of benefits in the future, but not those who have a good argument that benefits have vested even though they have not. Applying the definition in this fashion would mean, of course, that if the employer guesses right that a person with a colorable claim is in fact not entitled to benefits, he can deny that person the information required to be provided under 29 U.S. C. 1024(b)(4) without paying the $100-a-day damages assessable for breach of that obligation, 29 U.S. C. 1132(c)(1)(B) (1982 ed., Supp. IV). Since, however, no employer *120 sensible enough to consult the law would be senseless enough to take that risk, giving the term its defined meaning would produce precisely the same incentive for disclosure as the Court's opinion.

Justice Blackmun

majority

California v. Acevedo

https://www.courtlistener.com/opinion/112608/california-v-acevedo/

https://www.courtlistener.com/api/rest/v3/clusters/112608/

1990-092

This case requires us once again to consider the so-called "automobile exception" to the warrant requirement of the Fourth Amendment and its application to the search of a closed container in the trunk of a car. I On October 28, 1987, Officer Coleman of the Santa Ana, Cal., Police Department received a telephone call from a federal *567 drug enforcement agent in Hawaii. The agent informed Coleman that he had seized a package containing marijuana which was to have been delivered to the Federal Express Office in Santa Ana and which was addressed to J. R. Daza at 805 West Stevens Avenue in that city. The agent arranged to send the package to Coleman instead. Coleman then was to take the package to the Federal Express office and arrest the person who arrived to claim it. Coleman received the package on October 29, verified its contents, and took it to the Senior Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man, who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to his apartment on West Stevens. He carried the package into the apartment. At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had contained the marijuana into a trash bin. Coleman at that point left the scene to get a search warrant. About 12:05 p.m., the officers saw Richard St. George leave the apartment carrying a blue knapsack which appeared to be half full. The officers stopped him as he was driving off, searched the knapsack, and found 1½ pounds of marijuana. At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza's apartment, stayed for about 10 minutes, and reappeared carrying a brown paper bag that looked full. The officers noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the parking lot. He placed the bag in the trunk of the car and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the bag, and found marijuana.[1] *568 Respondent was charged in state court with possession of marijuana for sale, in violation of Cal. Health & Safety Code Ann. § 11359 (West Supp. 1991). App. 2. He moved to suppress the marijuana found in the car. The motion was denied. He then pleaded guilty but appealed the denial of the suppression motion. The California Court of Appeal, Fourth District, concluded that the marijuana found in the paper bag in the car's trunk should have been suppressed. 216 Cal. App. 3d 586, 265 Cal. Rptr. 23 (1990). The court concluded that the officers had probable cause to believe that the paper bag contained drugs but lacked probable cause to suspect that Acevedo's car, itself, otherwise contained contraband. Because the officers' probable cause was directed specifically at the bag, the court held that the case was controlled by United States v. Chadwick, 433 U.S. 1 (1977), rather than by United States v. Ross, 456 U.S. 798 (1982). Although the court agreed that the officers could seize the paper bag, it held that, under Chadwick, they could not open the bag without first obtaining a warrant for that purpose. The court then recoguized "the anomalous nature" of the dichotomy between the rule in Chadwick and the rule in Ross. 216 Cal. App. 3d, at 592, 265 Cal. Rptr., at 27. That dichotomy dictates that if there is probable cause to search a car, then the entire car—including any closed container found therein — may be searched without a warrant, but if there is probable cause only as to a container in the car, the container may be held but not searched until a warrant is obtained. The Supreme Court of California denied the State's petition for review. App. E to Pet. for Cert. 33. On May 14, 1990, JUSTICE O'CONNOR stayed enforcement of the Court of Appeal's judgment pending the disposition of the State's petition for certiorari, and, if that petition were granted, the issuance of the mandate of this Court. We granted certiorari, 498 U.S. 807 (1990), to reexamine the law applicable to a closed container in an automobile, a *569 subject that has troubled courts and law enforcement officers since it was first considered in Chadwick. II The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Contemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in "a dwelling house or similar place" and the need for a warrant to search for contraband concealed in a movable vessel. See Carroll v. United States, 267 U.S. 132, 151 (1925). See also Boyd v. United States, 116 U.S. 616, 623-624 (1886). In Carroll, this Court established an exception to the warrant requirement for moving vehicles, for it recognized "a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 267 U.S., at 153. It therefore held that a warrantless search of an automobile, based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the likely disappearance of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. See id., at 158-159. The Court refined the exigency requirement in Chambers v. Maroney, 399 U.S. 42 (1970), when it held that the existence of exigent circumstances was to be determined at the time the automobile is seized. The car search at issue in *570 Chambers took place at the police station, where the vehicle was immobilized, some time after the driver had been arrested. Given probable cause and exigent circumstances at the time the vehicle was first stopped, the Court held that the later warrantless search at the station passed constitutional muster. The validity of the later search derived from the ruling in Carroll that an immediate search without a warrant at the moment of seizure would have been permissible. See Chambers, 399 U. S., at 51. The Court reasoned in Chambers that the police could search later whenever they could have searched earlier, had they so chosen. Id., at 51-52. Following Chambers, if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle. In United States v. Ross, 456 U.S. 798, decided in 1982, we held that a warrantless search of an automobile under the Carroll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause. The warrantless search of Ross' car occurred after an informant told the police that he had seen Ross complete a drug transaction using drugs stored in the trunk of his car. The police stopped the car, searched it, and discovered in the trunk a brown paper bag containing drugs. We decided that the search of Ross' car was not unreasonable under the Fourth Amendment: "The scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause." Id., at 823. Thus, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id., at 825. In Ross, therefore, we clarified the scope of the Carroll doctrine as properly including a "probing search" of compartments and containers within the automobile so long as the search is supported by probable cause. Id., at 800. *571 In addition to this clarification, Ross distinguished the Carroll doctrine from the separate rule that governed the search of closed containers. See 456 U.S., at 817. The Court had announced this separate rule, unique to luggage and other closed packages, bags, and containers, in United States v. Chadwick, 433 U.S. 1 (1977). In Chadwick, federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker contained marijuana. The agents tracked the locker as the defendants removed it from a train and carried it through the station to a waiting car. As soon as the defendants lifted the locker into the trunk of the car, the agents arrested them, seized the locker, and searched it. In this Court, the United States did not contend that the locker's brief contact with the automobile's trunk sufficed to make the Carroll doctrine applicable. Rather, the United States urged that the search of movable luggage could be considered analogous to the search of an automobile. 433 U.S., at 11-12. The Court rejected this argument because, it reasoned, a person expects more privacy in his luggage and personal effects than he does in his automobile. Id., at 13. Moreover, it concluded that as "may often not be the case when automobiles are seized," secure storage facilities are usually available when the police seize luggage. Id., at 13, n. 7. In Arkansas v. Sanders, 442 U.S. 753 (1979), the Court extended Chadwick's rule to apply to a suitcase actually being transported in the trunk of a car. In Sanders, the police had probable cause to believe a suitcase contained marijuana. They watched as the defendant placed the suitcase in the trunk of a taxi and was driven away. The police pursued the taxi for several blocks, stopped it, found the suitcase in the trunk, and searched it. Although the Court had applied the Carroll doctrine to searches of integral parts of the automobile itself, (indeed, in Carroll, contraband whiskey was in the upholstery of the seats, see 267 U.S., at 136), it did not extend the doctrine to the warrantless search of personal luggage *572 "merely because it was located in an automobile lawfully stopped by the police." 442 U.S., at 765. Again, the Sanders majority stressed the heightened privacy expectation in personal luggage and concluded that the presence of luggage in an automobile did not diminish the owner's expectation of privacy in his personal items. Id., at 764-765. Cf. California v. Carney, 471 U.S. 386 (1985). In Ross, the Court endeavored to distinguish between Carroll, which governed the Ross automobile search, and Chadwick, which governed the Sanders automobile search. It held that the Carroll doctrine covered searches of automobiles when the police had probable cause to search an entire vehicle, but that the Chadwick doctrine governed searches of luggage when the officers had probable cause to search only a container within the vehicle. Thus, in a Ross situation, the police could conduct a reasonable search under the Fourth Amendment without obtaining a warrant, whereas in a Sanders situation, the police had to obtain a warrant before they searched. JUSTICE STEVENS is correct, of course, that Ross involved the scope of an automobile search. See post, at 592. Ross held that closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception could also be searched. Thus, this Court in Ross took the critical step of saying that closed containers in cars could be searched without a warrant because of their presence within the automobile. Despite the protection that Sanders purported to extend to closed containers, the privacy interest in those closed containers yielded to the broad scope of an automobile search. III The facts in this case closely resemble the facts in Ross. In Ross, the police had probable cause to believe that drugs were stored in the trunk of a particular car. See 456 U.S., at 800. Here, the California Court of Appeal concluded that the police had probable cause to believe that respondent was *573 carrying marijuana in a bag in his car's trunk.[2] 216 Cal. App. 3d, at 590, 265 Cal. Rptr., at 25. Furthermore, for what it is worth, in Ross, as here, the drugs in the trunk were contained in a brown paper bag. This Court in Ross rejected Chadwick's distinction between containers and cars. It concluded that the expectation of privacy in one's vehicle is equal to one's expectation of privacy in the container, and noted that "the privacy interests in a car's trunk or glove compartment may be no less than those in a movable container." 456 U.S., at 823. It also recognized that it was arguable that the same exigent circumstances that permit a warrantless search of an automobile would justify the warrantless search of a movable container. Id., at 809. In deference to the rule of Chadwick and Sanders, however, the Court put that question to one side. Id., at 809-810. It concluded that the time and expense of the warrant process would be misdirected if the police could search every cubic inch of an automobile until they discovered a paper sack, at which point the Fourth Amendment required them to take the sack to a magistrate for permission to look inside. We now must decide the question deferred in Ross: whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car. We conclude that it does not. IV Dissenters in Ross asked why the suitcase in Sanders was "more private, less difficult for police to seize and store, or in *574 any other relevant respect more properly subject to the warrant requirement, than a container that police discover in a probable-cause search of an entire automobile?" Id., at 839-840. We now agree that a container found after a general search of the automobile and a container found in a car after a limited search for the container are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police in Ross and the paper bag found by the police here. Furthermore, by attempting to distinguish between a container for which the police are specifically searching and a container which they come across in a car, we have provided only minimal protection for privacy and have impeded effective law enforcement. The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy interests. We noted this in Ross in the context of a search of an entire vehicle. Recognizing that under Carroll, the "entire vehicle itself . . . could be searched without a warrant," we concluded that "prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests." 456 U.S., at 821, n. 28. At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively *575 than they otherwise would in order to establish the general probable cause required by Ross. Such a situation is not farfetched. In United States v. Johns, 469 U.S. 478 (1985), Customs agents saw two trucks drive to a private airstrip and approach two small planes. The agents drew near the trucks, smelled marijuana, and then saw in the backs of the trucks packages wrapped in a manner that marijuana smugglers customarily employed. The agents took the trucks to headquarters and searched the packages without a warrant. Id., at 481. Relying on Chadwick, the defendants argued that the search was unlawful. Id., at 482. The defendants contended that Ross was inapplicable because the agents lacked probable cause to search anything but the packages themselves and supported this contention by noting that a search of the entire vehicle never occurred. Id., at 483. We rejected that argument and found Chadwick and Sanders inapposite because the agents had probable cause to search the entire body of each truck, although they had chosen not to do so. Id., at 482-483. We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one. To the extent that the Chadwick-Sanders rule protects privacy, its protection is minimal. Law enforcement officers may seize a container and hold it until they obtain a search warrant. Chadwick, 433 U. S., at 13. "Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases." Sanders, 442 U. S., at 770 (dissenting opinion). And the police often will be able to search containers without a warrant, despite the Chadwick-Sanders rule, as a search incident to a lawful arrest. In New York v. Belton, 453 U.S. 454 (1981), the Court said: *576 "[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. "It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment." Id., at 460 (footnote omitted). Under Belton, the same probable cause to believe that a container holds drugs will allow the police to arrest the person transporting the container and search it. Finally, the search of a paper bag intrudes far less on individual privacy than does the incursion sanctioned long ago in Carroll. In that case, prohibition agents slashed the upholstery of the automobile. This Court nonetheless found their search to be reasonable under the Fourth Amendment. If destroying the interior of an automobile is not unreasonable, we cannot conclude that looking inside a closed container is. In light of the minimal protection to privacy afforded by the Chadwick-Sanders rule, and our serious doubt whether that rule substantially serves privacy interests, we now hold that the Fourth Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle. V The Chadwick-Sanders rule not only has failed to protect privacy but also has confused courts and police officers and impeded effective law enforcement. The conflict between the Carroll doctrine cases and the Chadwick-Sanders line has been criticized in academic commentary. See, e. g., Gardner, Searches and Seizures of Automobiles and Their Contents: Fourth Amendment Considerations in a Post-Ross World, 62 Neb. L. Rev. 1 (1983); Latzer, Searching Cars and Their Contents: United States v. Ross, 18 Crim. L. Bull. 381 (1982); Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrinth" of Judicial Uncertainty, *577 in 3 The Supreme Court: Trends and Developments 1980-1981, p. 69 (D. Opperman ed. 1982). One leading authority on the Fourth Amendment, after comparing Chadwick and Sanders with Carroll and its progeny, observed: "These two lines of authority cannot be completely reconciled, and thus how one comes out in the container-in-the-car situation depends upon which line of authority is used as a point of departure." 3 W. LaFave, Search and Seizure 53 (2d ed. 1987). The discrepancy between the two rules has led to confusion for law enforcement officers. For example, when an officer, who has developed probable cause to believe that a vehicle contains drugs, begins to search the vehicle and immediately discovers a closed container, which rule applies? The defendant will argue that the fact that the officer first chose to search the container indicates that his probable cause extended only to the container and that Chadwick and Sanders therefore require a warrant. On the other hand, the fact that the officer first chose to search in the most obvious location should not restrict the propriety of the search. The Chadwick rule, as applied in Sanders, has devolved into an anomaly such that the more likely the police are to discover drugs in a container, the less authority they have to search it. We have noted the virtue of providing "`"clear and unequivocal" guidelines to the law enforcement profession.'" Minnick v. Mississippi, 498 U.S. 146, 151 (1990), quoting Arizona v. Roberson, 486 U.S. 675, 682 (1988). The Chadwick-Sanders rule is the antithesis of a "`clear and unequivocal' guideline." JUSTICE STEVENS argues that the decisions of this Court evince a lack of confusion about the automobile exception. See post, at 594. The first case cited by the dissent, United States v. Place, 462 U.S. 696 (1983), however, did not involve an automobile at all. We considered in Place the temporary detention of luggage in an airport. Not only was no automobile involved, but the defendant, Place, was waiting *578 at the airport to board his plane rather than preparing to leave the airport in a car. Any similarity to Sanders, in which the defendant was leaving the airport in a car, is remote at best. Place had nothing to do with the automobile exception and is inapposite. Nor does JUSTICE STEVENS' citation of Oklahoma v. Castleberry, 471 U.S. 146 (1985), support his contention. Castleberry presented the same question about the application of the automobile exception to the search of a closed container that we face here. In Castleberry, we affirmed by an equally divided court. That result illustrates this Court's continued struggle with the scope of the automobile exception rather than the absence of confusion in applying it. JUSTICE STEVENS also argues that law enforcement has not been impeded because the Court has decided 29 Fourth Amendment cases since Ross in favor of the government. See post, at 600. In each of these cases, the government appeared as the petitioner. The dissent fails to explain how the loss of 29 cases below, not to mention the many others which this Court did not hear, did not interfere with law enforcement. The fact that the state courts and the Federal Courts of Appeals have been reversed in their Fourth Amendment holdings 29 times since 1982 further demonstrates the extent to which our Fourth Amendment jurisprudence has confused the courts. Most important, with the exception of United States v. Johns, 469 U.S. 478 (1985), and Texas v. Brown, 460 U.S. 730 (1983), the Fourth Amendment cases cited by the dissent do not concern automobiles or the automobile exception. From Carroll through Ross, this Court has explained that automobile searches differ from other searches. The dissent fails to acknowledge this basic principle and so misconstrues and misapplies our Fourth Amendment case law. The Chadwick dissenters predicted that the container rule would have "the perverse result of allowing fortuitous circumstances to control the outcome" of various searches. 433 *579 U. S., at 22. The rule also was so confusing that within two years after Chadwick, this Court found it necessary to expound on the meaning of that decision and explain its application to luggage in general. Sanders, 442 U. S., at 761-764. Again, dissenters bemoaned the "inherent opaqueness" of the difference between the Carroll and Chadwick principles and noted "the confusion to be created for all concerned." Id., at 771. See also Robbins v. California, 453 U.S. 420, 425-426 (1981) (listing cases decided by Federal Courts of Appeals since Chadwick had been announced). Three years after Sanders, we returned in Ross to "this troubled area," 456 U.S., at 817, in order to assert that Sanders had not cut back on Carroll. Although we have recognized firmly that the doctrine of stare decisis serves profoundly important purposes in our legal system, this Court has overruled a prior case on the comparatively rare occasion when it has bred confusion or been a derelict or led to anomalous results. See, e. g., Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 288-289 (1977). Sanders was explicitly undermined in Ross, 456 U. S., at 824, and the existence of the dual regimes for automobile searches that uncover containers has proved as confusing as the Chadwick and Sanders dissenters predicted. We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in Sanders. VI The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. The Court in Ross put it this way: "The scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object *580 of the search and the places in which there is probable cause to believe that it may be found." 456 U.S., at 824. It went on to note: "Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab." Ibid. We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile's trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment. Our holding today neither extends the Carroll doctrine nor broadens the scope of the permissible automobile search delineated in Carroll, Chambers, and Ross. It remains a "cardinal principle that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390 (1978), quoting Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted). We held in Ross: "The exception recognized in Carroll is unquestionably one that is `specifically established and well delineated.'" 456 U.S., at 825. Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. *581 The judgment of the California Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE SCALIA, concurring in the judgment.

This case requires us once aga to consider the so-called "automobile exception" to the warrant requirement of the Fourth Amendment and its application to the search of a closed contaer the trunk of a car. I On October 28, 1987, Officer Coleman of the Santa Ana, Cal., Police Department received a telephone call from a federal *567 drug enforcement agent Hawaii. The agent formed Coleman that he had seized a package contag marijuana which was to have been delivered to the Federal Express Office Santa Ana and which was addressed to J. R. Daza at 805 West Stevens Avenue that city. The agent arranged to send the package to Coleman stead. Coleman then was to take the package to the Federal Express office and arrest the person who arrived to claim it. Coleman received the package on October 29, verified its contents, and took it to the Senior Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man, who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to his apartment on West Stevens. He carried the package to the apartment. At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had contaed the marijuana to a trash b. Coleman at that pot left the scene to get a search warrant. About 12:05 p.m., the officers saw Richard St. George leave the apartment carryg a blue knapsack which appeared to be half full. The officers stopped him as he was drivg off, searched the knapsack, and found 1½ pounds of marijuana. At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza's apartment, stayed for about 10 mutes, and reappeared carryg a brown paper bag that looked full. The officers noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda the parkg lot. He placed the bag the trunk of the car and started to drive away. Fearg the loss of evidence, officers a marked police car stopped him. They opened the trunk and the bag, and found marijuana.[1] *568 Respondent was charged state court with possession of marijuana for sale, violation of Cal. Health & Safety Code Ann. 11359 (West Supp. 1991). App. 2. He moved to suppress the marijuana found the car. The motion was denied. He then pleaded guilty but appealed the denial of the suppression motion. The California Court of Appeal, Fourth District, concluded that the marijuana found the paper bag the car's trunk should have been suppressed. The court concluded that the officers had probable cause to believe that the paper bag contaed drugs but lacked probable cause to suspect that Acevedo's car, itself, otherwise contaed contraband. Because the officers' probable cause was directed specifically at the bag, the court held that the case was controlled by United rather than by United Although the court agreed that the officers could seize the paper bag, it held that, under they could not open the bag without first obtag a warrant for that purpose. The court then recoguized "the anomalous nature" of the dichotomy between the rule and the rule That dichotomy dictates that if there is probable cause to search a car, then the entire car—cludg any closed contaer found there — may be searched without a warrant, but if there is probable cause only as to a contaer the car, the contaer may be held but not searched until a warrant is obtaed. The Supreme Court of California denied the State's petition for review. App. E to Pet. for Cert. 33. On May 14, JUSTICE O'CONNOR stayed enforcement of the Court of Appeal's judgment pendg the disposition of the State's petition for certiorari, and, if that petition were granted, the issuance of the mandate of this Court. We granted certiorari, to reexame the law applicable to a closed contaer an automobile, a *569 subject that has troubled courts and law enforcement officers sce it was first considered II The Fourth Amendment protects the "right of the people to be secure their persons, houses, papers, and effects, agast unreasonable searches and seizures." Contemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distguished between the need for a warrant to search for contraband concealed "a dwellg house or similar place" and the need for a warrant to search for contraband concealed a movable vessel. See See also In Carroll, this Court established an exception to the warrant requirement for movg vehicles, for it recognized "a necessary difference between a search of a store, dwellg house or other structure respect of which a proper official warrant readily may be obtaed, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction which the warrant must be sought." It therefore held that a warrantless search of an automobile, based upon probable cause to believe that the vehicle contaed evidence of crime the light of an exigency arisg out of the likely disappearance of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. See The Court refed the exigency requirement when it held that the existence of exigent circumstances was to be determed at the time the automobile is seized. The car search at issue *570 took place at the police station, where the vehicle was immobilized, some time after the driver had been arrested. Given probable cause and exigent circumstances at the time the vehicle was first stopped, the Court held that the later warrantless search at the station passed constitutional muster. The validity of the later search derived from the rulg Carroll that an immediate search without a warrant at the moment of seizure would have been permissible. See The Court reasoned that the police could search later whenever they could have searched earlier, had they so chosen. Followg if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle. In United decided 1982, we held that a warrantless search of an automobile under the Carroll doctre could clude a search of a contaer or package found side the car when such a search was supported by probable cause. The warrantless search of ' car occurred after an formant told the police that he had seen complete a drug transaction usg drugs stored the trunk of his car. The police stopped the car, searched it, and discovered the trunk a brown paper bag contag drugs. We decided that the search of ' car was not unreasonable under the Fourth Amendment: "The scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause." Thus, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." In therefore, we clarified the scope of the Carroll doctre as properly cludg a "probg search" of compartments and contaers with the automobile so long as the search is supported by probable cause. *571 In addition to this clarification, distguished the Carroll doctre from the separate rule that governed the search of closed contaers. See The Court had announced this separate rule, unique to luggage and other closed packages, bags, and contaers, United In federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker contaed marijuana. The agents tracked the locker as the defendants removed it from a tra and carried it through the station to a waitg car. As soon as the defendants lifted the locker to the trunk of the car, the agents arrested them, seized the locker, and searched it. In this Court, the United States did not contend that the locker's brief contact with the automobile's trunk sufficed to make the Carroll doctre applicable. Rather, the United States urged that the search of movable luggage could be considered analogous to the search of an automobile. -12. The Court rejected this argument because, it reasoned, a person expects more privacy his luggage and personal effects than he does his automobile. Moreover, it concluded that as "may often not be the case when automobiles are seized," secure storage facilities are usually available when the police seize luggage. n. 7. In the Court extended 's rule to apply to a suitcase actually beg transported the trunk of a car. In the police had probable cause to believe a suitcase contaed marijuana. They watched as the defendant placed the suitcase the trunk of a taxi and was driven away. The police pursued the taxi for several blocks, stopped it, found the suitcase the trunk, and searched it. Although the Court had applied the Carroll doctre to searches of tegral parts of the automobile itself, (deed, Carroll, contraband whiskey was the upholstery of the seats, see 267 U.S., 6), it did not extend the doctre to the warrantless search of personal luggage *572 "merely because it was located an automobile lawfully stopped by the police." Aga, the majority stressed the heightened privacy expectation personal luggage and concluded that the presence of luggage an automobile did not dimish the owner's expectation of privacy his personal items. Cf. In the Court endeavored to distguish between Carroll, which governed the automobile search, and which governed the automobile search. It held that the Carroll doctre covered searches of automobiles when the police had probable cause to search an entire vehicle, but that the doctre governed searches of luggage when the officers had probable cause to search only a contaer with the vehicle. Thus, a situation, the police could conduct a reasonable search under the Fourth Amendment without obtag a warrant, whereas a situation, the police had to obta a warrant before they searched. JUSTICE STEVENS is correct, of course, that volved the scope of an automobile search. See post, at 592. held that closed contaers encountered by the police durg a warrantless search of a car pursuant to the automobile exception could also be searched. Thus, this Court took the critical step of sayg that closed contaers cars could be searched without a warrant because of their presence with the automobile. Despite the protection that purported to extend to closed contaers, the privacy terest those closed contaers yielded to the broad scope of an automobile search. III The facts this case closely resemble the facts In the police had probable cause to believe that drugs were stored the trunk of a particular car. See 456 U.S., Here, the California Court of Appeal concluded that the police had probable cause to believe that respondent was *573 carryg marijuana a bag his car's trunk.[2] Furthermore, for what it is worth, as here, the drugs the trunk were contaed a brown paper bag. This Court rejected 's distction between contaers and cars. It concluded that the expectation of privacy one's vehicle is equal to one's expectation of privacy the contaer, and noted that "the privacy terests a car's trunk or glove compartment may be no less than those a movable contaer." 456 U.S., It also recognized that it was arguable that the same exigent circumstances that permit a warrantless search of an automobile would justify the warrantless search of a movable contaer. In deference to the rule of and however, the Court put that question to one side. -810. It concluded that the time and expense of the warrant process would be misdirected if the police could search every cubic ch of an automobile until they discovered a paper sack, at which pot the Fourth Amendment required them to take the sack to a magistrate for permission to look side. We now must decide the question deferred : whether the Fourth Amendment requires the police to obta a warrant to open the sack a movable vehicle simply because they lack probable cause to search the entire car. We conclude that it does not. IV Dissenters asked why the suitcase was "more private, less difficult for police to seize and store, or *574 any other relevant respect more properly subject to the warrant requirement, than a contaer that police discover a probable-cause search of an entire automobile?" We now agree that a contaer found after a general search of the automobile and a contaer found a car after a limited search for the contaer are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no prcipled distction terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police and the paper bag found by the police here. Furthermore, by attemptg to distguish between a contaer for which the police are specifically searchg and a contaer which they come across a car, we have provided only mimal protection for privacy and have impeded effective law enforcement. The le between probable cause to search a vehicle and probable cause to search a package that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy terests. We noted this the context of a search of an entire vehicle. Recognizg that under Carroll, the "entire vehicle itself could be searched without a warrant," we concluded that "prohibitg police from openg immediately a contaer which the object of the search is most likely to be found and stead forcg them first to comb the entire vehicle would actually exacerbate the trusion on privacy terests." n. 28. At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certaty that the vehicle contas drugs a bag or simply contas drugs. If the police know that they may open a bag only if they are actually searchg the entire car, they may search more extensively *575 than they otherwise would order to establish the general probable cause required by Such a situation is not farfetched. In United Customs agents saw two trucks drive to a private airstrip and approach two small planes. The agents drew near the trucks, smelled marijuana, and then saw the backs of the trucks packages wrapped a manner that marijuana smugglers customarily employed. The agents took the trucks to headquarters and searched the packages without a warrant. Relyg on the defendants argued that the search was unlawful. The defendants contended that was applicable because the agents lacked probable cause to search anythg but the packages themselves and supported this contention by notg that a search of the entire vehicle never occurred. We rejected that argument and found and apposite because the agents had probable cause to search the entire body of each truck, although they had chosen not to do so. -483. We cannot see the benefit of a rule that requires law enforcement officers to conduct a more trusive search order to justify a less trusive one. To the extent that the - rule protects privacy, its protection is mimal. Law enforcement officers may seize a contaer and hold it until they obta a search warrant. 433 U. S., "Sce the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routely forthcomg the overwhelmg majority of cases." (dissentg opion). And the police often will be able to search contaers without a warrant, despite the - rule, as a search cident to a lawful arrest. In New the Court said: *576 "[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous cident of that arrest, search the passenger compartment of that automobile. "It follows from this conclusion that the police may also exame the contents of any contaers found with the passenger compartment." Under Belton, the same probable cause to believe that a contaer holds drugs will allow the police to arrest the person transportg the contaer and search it. Fally, the search of a paper bag trudes far less on dividual privacy than does the cursion sanctioned long ago Carroll. In that case, prohibition agents slashed the upholstery of the automobile. This Court nonetheless found their search to be reasonable under the Fourth Amendment. If destroyg the terior of an automobile is not unreasonable, we cannot conclude that lookg side a closed contaer is. In light of the mimal protection to privacy afforded by the - rule, and our serious doubt whether that rule substantially serves privacy terests, we now hold that the Fourth Amendment does not compel separate treatment for an automobile search that extends only to a contaer with the vehicle. V The - rule not only has failed to protect privacy but also has confused courts and police officers and impeded effective law enforcement. The conflict between the Carroll doctre cases and the - le has been criticized academic commentary. See, e. g., Gardner, Searches and Seizures of Automobiles and Their Contents: Fourth Amendment Considerations a Post- World, ; Latzer, Searchg Cars and Their Contents: United ; Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrth" of Judicial Uncertaty, *577 3 The Supreme Court: Trends and Developments 1980-1981, p. 69 One leadg authority on the Fourth Amendment, after comparg and with Carroll and its progeny, observed: "These two les of authority cannot be completely reconciled, and thus how one comes out the contaer--the-car situation depends upon which le of authority is used as a pot of departure." 3 W. LaFave, Search and Seizure 53 (2d ed. 1987). The discrepancy between the two rules has led to confusion for law enforcement officers. For example, when an officer, who has developed probable cause to believe that a vehicle contas drugs, begs to search the vehicle and immediately discovers a closed contaer, which rule applies? The defendant will argue that the fact that the officer first chose to search the contaer dicates that his probable cause extended only to the contaer and that and therefore require a warrant. On the other hand, the fact that the officer first chose to search the most obvious location should not restrict the propriety of the search. The rule, as applied has devolved to an anomaly such that the more likely the police are to discover drugs a contaer, the less authority they have to search it. We have noted the virtue of providg "`"clear and unequivocal" guideles to the law enforcement profession.'" Mnick v. Mississippi, quotg The - rule is the antithesis of a "`clear and unequivocal' guidele." JUSTICE STEVENS argues that the decisions of this Court evce a lack of confusion about the automobile exception. See post, at 594. The first case cited by the dissent, United however, did not volve an automobile at all. We considered Place the temporary detention of luggage an airport. Not only was no automobile volved, but the defendant, Place, was waitg *578 at the airport to board his plane rather than preparg to leave the airport a car. Any similarity to which the defendant was leavg the airport a car, is remote at best. Place had nothg to do with the automobile exception and is apposite. Nor does JUSTICE STEVENS' citation of support his contention. Castleberry presented the same question about the application of the automobile exception to the search of a closed contaer that we face here. In Castleberry, we affirmed by an equally divided court. That result illustrates this Court's contued struggle with the scope of the automobile exception rather than the absence of confusion applyg it. JUSTICE STEVENS also argues that law enforcement has not been impeded because the Court has decided 29 Fourth Amendment cases sce favor of the government. See post, at 600. In each of these cases, the government appeared as the petitioner. The dissent fails to expla how the loss of 29 cases below, not to mention the many others which this Court did not hear, did not terfere with law enforcement. The fact that the state courts and the Federal Courts of Appeals have been reversed their Fourth Amendment holdgs 29 times sce 1982 further demonstrates the extent to which our Fourth Amendment jurisprudence has confused the courts. Most important, with the exception of United and the Fourth Amendment cases cited by the dissent do not concern automobiles or the automobile exception. From Carroll through this Court has explaed that automobile searches differ from other searches. The dissent fails to acknowledge this basic prciple and so misconstrues and misapplies our Fourth Amendment case law. The dissenters predicted that the contaer rule would have "the perverse result of allowg fortuitous circumstances to control the outcome" of various searches. 433 *. The rule also was so confusg that with two years after this Court found it necessary to expound on the meang of that decision and expla its application to luggage general. -764. Aga, dissenters bemoaned the "herent opaqueness" of the difference between the Carroll and prciples and noted "the confusion to be created for all concerned." See also Robbs v. California, (listg cases decided by Federal Courts of Appeals sce had been announced). Three years after we returned to "this troubled area," order to assert that had not cut back on Carroll. Although we have recognized firmly that the doctre of stare decisis serves profoundly important purposes our legal system, this Court has overruled a prior case on the comparatively rare occasion when it has bred confusion or been a derelict or led to anomalous results. See, e. g., Complete Auto Transit, was explicitly undermed and the existence of the dual regimes for automobile searches that uncover contaers has proved as confusg as the and dissenters predicted. We conclude that it is better to adopt one clear-cut rule to govern automobile searches and elimate the warrant requirement for closed contaers set forth VI The terpretation of the Carroll doctre set forth now applies to all searches of contaers found an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. The Court put it this way: "The scope of a warrantless search of an automobile is not defed by the nature of the contaer which the contraband is secreted. Rather, it is defed by the object *580 of the search and the places which there is probable cause to believe that it may be found." It went on to note: "Probable cause to believe that a contaer placed the trunk of a taxi contas contraband or evidence does not justify a search of the entire cab." We reaffirm that prciple. In the case before us, the police had probable cause to believe that the paper bag the automobile's trunk contaed marijuana. That probable cause now allows a warrantless search of the paper bag. The facts the record reveal that the police did not have probable cause to believe that contraband was hidden any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment. Our holdg today neither extends the Carroll doctre nor broadens the scope of the permissible automobile search deleated Carroll, and It remas a "cardal prciple that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-deleated exceptions.'" Mcey v. Arizona, quotg We held : "The exception recognized Carroll is unquestionably one that is `specifically established and well deleated.'" 456 U.S., Until today, this Court has drawn a curious le between the search of an automobile that cocidentally turns up a contaer and the search of a contaer that cocidentally turns up an automobile. The protections of the Fourth Amendment must not turn on such cocidences. We therefore terpret Carroll as providg one rule to govern all automobile searches. The police may search an automobile and the contaers with it where they have probable cause to believe contraband or evidence is contaed. *581 The judgment of the California Court of Appeal is reversed, and the case is remanded to that court for further proceedgs not consistent with this opion. It is so ordered. JUSTICE SCALIA, concurrg the judgment.

Justice Rehnquist

dissenting

Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich

https://www.courtlistener.com/opinion/109495/serbian-eastern-orthodox-diocese-for-united-states-and-canada-v/

https://www.courtlistener.com/api/rest/v3/clusters/109495/

1975-139

The Court's opinion, while long on the ecclesiastical history of the Serbian Orthodox Church, is somewhat short on the procedural history of this case. A casual reader of some of the passages in the Court's opinion could easily gain the impression that the State of Illinois had commenced a proceeding designed to brand Bishop Dionisije as a heretic, with appropriate pains and penalties. But the state trial judge in the Circuit Court of Lake County was not the Bishop of Beauvais, trying Joan of Arc for heresy; the jurisdiction of his court was invoked by petitioners themselves, who sought an injunction establishing their control over property of the American-Canadian Diocese of the church located in Lake County. The jurisdiction of that court having been invoked *726 for such a purpose by both petitioners and respondents, contesting claimants to Diocesan authority, it was entitled to ask if the real Bishop of the American-Canadian Diocese would please stand up. The protracted proceedings in the Illinois courts were devoted to the ascertainment of who that individual was, a question which the Illinois courts sought to answer by application of the canon law of the church, just as they would have attempted to decide a similar dispute among the members of any other voluntary association. The Illinois courts did not in the remotest sense inject their doctrinal preference into the dispute. They were forced to decide between two competing sets of claimants to church office in order that they might resolve a dispute over real property located within the State. Each of the claimants had requested them to decide the issue. Unless the First Amendment requires control of disputed church property to be awarded solely on the basis of ecclesiastical paper title, I can find no constitutional infirmity in the judgment of the Supreme Court of Illinois. Unless civil courts are to be wholly divested of authority to resolve conflicting claims to real property owned by a hierarchical church, and such claims are to be resolved by brute force, civil courts must of necessity make some factual inquiry even under the rules the Court purports to apply in this case. We are told that "a civil court must accept the ecclesiastical decisions of church tribunals as it finds them," ante, at 713. But even this rule requires that proof be made as to what these decisions are, and if proofs on that issue conflict the civil court will inevitably have to choose one over the other. In so choosing, if the choice is to be a rational one, reasons must be adduced as to why one proffered decision is to prevail over another. Such reasons will *727 obviously be based on the canon law by which the disputants have agreed to bind themselves, but they must also represent a preference for one view of that law over another. If civil courts, consistently with the First Amendment, may do that much, the question arises why they may not do what the Illinois courts did here regarding the defrockment of Bishop Dionisije, and conclude, on the basis of testimony from experts on the canon law at issue, that the decision of the religious tribunal involved was rendered in violation of its own stated rules of procedure. Suppose the Holy Assembly in this case had a membership of 100; its rules provided that a bishop could be defrocked by a majority vote of any session at which a quorum was present, and also provided that a quorum was not to be less than 40. Would a decision of the Holy Assembly attended by 30 members, 16 of whom voted to defrock Bishop Dionisije, be binding on civil courts in a dispute such as this? The hypothetical example is a clearer case than the one involved here, but the principle is the same. If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness. The cases upon which the Court relies are not a uniform line of authorities leading inexorably to reversal of the Illinois judgment. On the contrary, they embody two distinct doctrines which have quite separate origins. The first is a common-law doctrine regarding the appropriate roles for civil courts called upon to adjudicate church property disputes—a doctrine which found general application in federal courts prior to Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), but which has never had any application to our review of a state-court *728 decision. The other is derived from the First Amendment to the Federal Constitution, and is of course applicable to this case; it, however, lends no more support to the Court's decision than does the common-law doctrine. The first decision of this Court regarding the role of civil courts in adjudicating church property disputes was Watson v. Jones, 13 Wall. 679 (1872). There the Court canvassed the American authorities and concluded that where people had chosen to organize themselves into voluntary religious associations, and had agreed to be bound by the decisions of the hierarchy created to govern such associations, the civil courts could not be availed of to hear appeals from otherwise final decisions of such hierarchical authorities. The bases from which this principle was derived clearly had no constitutional dimension; there was not the slightest suggestion that the First Amendment or any other provision of the Constitution was relevant to the decision in that case. Instead the Court was merely recognizing and applying general rules as to the limited role which civil courts must have in settling private intraorganizational disputes. While those rules, and the reasons behind them, may seem especially relevant to intrachurch disputes, adherence or nonadherence to such principles was certainly not thought to present any First Amendment issues. For as the Court in Watson observed: "Religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints." Id., at 714. The Court's equation of religious bodies with other private voluntary associations makes it clear that the principles *729 discussed in that case were not dependent upon those embodied in the First Amendment. Less than a year later Watson's observations about the roles of civil courts were followed in Bouldin v. Alexander, 15 Wall. 131 (1872), where the Court held that the appointed trustees of the property of a congregational church "cannot be removed from their trusteeship by a minority of the church society or meeting, without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules." Id., at 140. Again, there was nothing to suggest that this was based upon anything but commonsense rules for deciding an intraorganizational dispute: in an organization which has provided for majority rule through certain procedures, a minority's attempt to usurp that rule and those procedures need be given no effect by civil courts. In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court again recognized the principles underlying Watson in upholding a decision of the Supreme Court of the Philippine Islands that the petitioner was not entitled to the chaplaincy which he claimed because the decision as to whether he possessed the necessary qualifications for that post was one committed to the appropriate church authorities. In dicta which the Court today conveniently truncates, Mr. Justice Brandeis observed: "In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. Under like circumstances, effect is given in the courts to the determinations of the judicatory bodies established *730 by clubs and civil associations." Id., at 16-17 (emphasis supplied; footnotes omitted). Gonzalez clearly has no more relevance to the meaning of the First Amendment than do its two predecessors. The year 1952 was the first occasion on which this Court examined what limits the First and Fourteenth Amendments might place upon the ability of the States to entertain and resolve disputes over church property. In Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952), the Court reversed a decision of the New York Court of Appeals which had upheld a statute awarding control of the New York property of the Russian Orthodox Church to an American group seeking to terminate its relationships with the hierarchical Mother Church in Russia. The New York Legislature had concluded that the Communist government of Russia was actually in control of the Mother Church and that " `the Moscow Patriarchate was no longer capable of functioning as a true religious body, but had become a tool of the Soviet Government primarily designed to implement its foreign policy,' " id., at 107 n. 10, quoting from 302 N.Y. 1, 32-33, 96 N.E.2d 56, 73-74 (1950), and the New York Court of Appeals sustained the statute against the constitutional attack. This Court, however, held the statute was a violation of the Free Exercise Clause, noting: "By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment." 344 U.S., at 119. On remand from the decision in Kedroff, the New York Court of Appeals again held that the American *731 group was entitled to the church property at issue. This time relying upon the common law of the State, the Court of Appeals ruled that the Patriarch of Moscow was so dominated by the secular government of Russia that his appointee could not validly occupy the Church's property. On appeal, this Court reversed summarily, Kreshik v. Nicholas Cathedral, 363 U.S. 190 (1960), noting in its per curiam opinion that "the decision now under review rests on the same premises which were found to have underlain the enactment of the statute struck down in Kedroff." Id., at 191. Nine years later, in Presbyterian Church v. Hull Church, 393 U.S. 440 (1969), the Court held that Georgia's common law, which implied a trust upon local church property for the benefit of the general church only on the condition that the general church adhere to its tenets of faith and practice existing at the time of affiliation by the local churches, was inconsistent with the First and Fourteenth Amendments and therefore could not be utilized to resolve church property disputes. The Georgia law was held impermissible because "[u]nder [the Georgia] approach, property rights do not turn on a church decision as to church doctrine. The standard of departure-from-doctrine, though it calls for resolution of ecclesiastical questions, is a creation of state, not church, law." Id., at 451. Finally, in Md. & Va. Churches v. Sharpsburg Church, 396 U.S. 367 (1970), the Court considered an appeal from a judgment of the Court of Appeals of Maryland upholding the dismissal of two actions brought by the Eldership seeking to prevent two of its local churches from withdrawing from that general religious association. The Eldership had also claimed the rights to select the *732 clergy and to control the property of the two local churches, but the Maryland courts, relying "upon provisions of state statutory law governing the holding of property by religious corporations, upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property," ibid. (emphasis supplied; footnote omitted), concluded that the Eldership had no right to invoke the State's authority to compel their local churches to remain within the fold or to succeed to control of their property. This Court dismissed the Eldership's contention that this judgment violated the First Amendment for want of a substantial federal question. Despite the Court's failure to do so, it does not seem very difficult to derive the operative constitutional principle from this line of decisions. As should be clear from even this cursory study, Watson, Bouldin, and Gonzalez have no direct relevance[*] to the question before us today: *733 whether the First Amendment, as made applicable to the States by the Fourteenth, prohibits Illinois from permitting its civil courts to settle religious property disputes in the manner presented to us on this record. I think it equally clear that the only cases which are relevant to that question—Kedroff, Kreshik, Hull, and Md. & Va. Churches—require that this question be answered in the negative. The rule of those cases, one which seems fairly implicit in the history of our First Amendment, is that the government may not displace the free religious choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect. That is what New York attempted to do in Kedroff and Kreshik, albeit perhaps for nonreligious reasons, and the Court refused to permit it. In Hull, the State transgressed the line drawn by the First Amendment when it applied a state-created rule of law based upon "departure from doctrine" to prevent the national hierarchy of the Presbyterian Church in the United States from seeking to reclaim possession and use of two local churches. When the Georgia courts themselves required an examination into whether there had been a departure from the doctrine of the church in order to apply this state-created rule, they went beyond mere application of neutral principles of law to such a dispute. There is nothing in this record to indicate that the Illinois courts have been instruments of any such impermissible intrusion by the State on one side or the other of a religious dispute. There is nothing in the Supreme Court of Illinois' opinion indicating that it placed its thumb on the scale in favor of the respondents. Instead that opinion appears to be precisely what it purports *734 to be: an application of neutral principles of law consistent with the decisions of this Court. Indeed, petitioners make absolutely no claim to the contrary. They agree that the Illinois courts should have decided the issues which they presented; but they contend that in doing so those courts should have deferred entirely to the representations of the announced representatives of the Mother Church. Such blind deference, however, is counseled neither by logic nor by the First Amendment. To make available the coercive powers of civil courts to rubber-stamp ecclesiastical decisions of hierarchical religious associations, when such deference is not accorded similar acts of secular voluntary associations, would, in avoiding the free exercise problems petitioners envision, itself create far more serious problems under the Establishment Clause. In any event the Court's decision in Md. & Va. Churches demonstrates that petitioners' position in this regard is untenable. And as I read that decision, it seems to me to compel affirmance of at least that portion of the Illinois court's decision which denied petitioners' request for the aid of the civil courts in enforcing its desire to divide the American-Canadian Diocese. See ante, at 720-724 (Part III). I see no distinction between the Illinois courts' refusal to place their weight behind the representatives of the Serbian Mother Church who sought to prevent portions of their American congregation from splitting off from that body and the Maryland courts' refusal to do the same thing for the Eldership of the Church of God. The Court today expressly eschews any explanation for its failure to follow Md. & Va. Churches, see ante, at 721, contenting itself with this conclusory statement: "The constitutional provisions of the American-Canadian Diocese were not so express that the civil *735 courts could enforce them without engaging in a searching and therefore impermissible inquiry into church polity." Ante, at 723. But comparison of the relevant discussions by the state tribunals regarding their consideration of church documents makes this claimed distinction seem quite specious. Compare Md. & Va. Churches v. Sharpsburg Church, 254 Md. 162, 170, 254 A.2d 162, 168 (1969), with Serbian Orthodox Diocese v. Ocokoljich, 72 Ill. App. 2d 444, 458-462, 219 N.E.2d 343, 350-353 (1966). In conclusion, while there may be a number of good arguments that civil courts of a State should, as a matter of the wisest use of their authority, avoid adjudicating religious disputes to the maximum extent possible, they obviously cannot avoid all such adjudications. And while common-law principles like those discussed in Watson, Bouldin, and Gonzalez may offer some sound principles for those occasions when such adjudications are required, they are certainly not rules to which state courts are required to adhere by virtue of the Fourteenth Amendment. The principles which that Amendment, through its incorporation of the First, does enjoin upon the state courts—that they remain neutral on matters of religious doctrine—have not been transgressed by the Supreme Court of Illinois.

The Court's opinion, while long on the ecclesiastical history of the Serbian Orthodox Church, is somewhat short on the procedural history of this case. A casual reader of some of the passages in the Court's opinion could easily gain the impression that the State of Illinois had commenced a proceeding designed to brand Bishop Dionisije as a heretic, with appropriate pains and penalties. But the state trial judge in the Circuit Court of Lake County was not the Bishop of Beauvais, trying Joan of Arc for heresy; the jurisdiction of his court was invoked by petitioners themselves, who sought an injunction establishing their control over property of the American-Canadian Diocese of the church located in Lake County. The jurisdiction of that court having been invoked *726 for such a purpose by both petitioners and respondents, contesting claimants to Diocesan authority, it was entitled to ask if the real Bishop of the American-Canadian Diocese would please stand up. The protracted proceedings in the Illinois courts were devoted to the ascertainment of who that individual was, a question which the Illinois courts sought to answer by application of the canon law of the church, just as they would have attempted to decide a similar dispute among the members of any other voluntary association. The Illinois courts did not in the remotest sense inject their doctrinal preference into the dispute. They were forced to decide between two competing sets of claimants to church office in order that they might resolve a dispute over real property located within the State. Each of the claimants had requested them to decide the issue. Unless the First Amendment requires control of disputed church property to be awarded solely on the basis of ecclesiastical paper title, I can find no constitutional infirmity in the judgment of the Supreme Court of Illinois. Unless civil courts are to be wholly divested of authority to resolve conflicting claims to real property owned by a hierarchical church, and such claims are to be resolved by brute force, civil courts must of necessity make some factual inquiry even under the rules the Court purports to apply in this case. We are told that "a civil court must accept the ecclesiastical decisions of church tribunals as it finds them," ante, at 713. But even this rule requires that proof be made as to what these decisions are, and if proofs on that issue conflict the civil court will inevitably have to choose one over the other. In so choosing, if the choice is to be a rational one, reasons must be adduced as to why one proffered decision is to prevail over another. Such reasons will *727 obviously be based on the canon law by which the disputants have agreed to bind themselves, but they must also represent a preference for one view of that law over another. If civil courts, consistently with the First Amendment, may do that much, the question arises why they may not do what the Illinois courts did here regarding the defrockment of Bishop Dionisije, and conclude, on the basis of testimony from experts on the canon law at issue, that the decision of the religious tribunal involved was rendered in violation of its own stated rules of procedure. Suppose the Holy Assembly in this case had a membership of 100; its rules provided that a bishop could be defrocked by a majority vote of any session at which a quorum was present, and also provided that a quorum was not to be less than 40. Would a decision of the Holy Assembly attended by 30 members, 16 of whom voted to defrock Bishop Dionisije, be binding on civil courts in a dispute such as this? The hypothetical example is a clearer case than the one involved here, but the principle is the same. If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness. The cases upon which the Court relies are not a uniform line of authorities leading inexorably to reversal of the Illinois judgment. On the contrary, they embody two distinct doctrines which have quite separate origins. The first is a common-law doctrine regarding the appropriate roles for civil courts called upon to adjudicate church property disputes—a doctrine which found general application in federal courts prior to Erie R. but which has never had any application to our review of a state-court *728 decision. The other is derived from the First Amendment to the Federal Constitution, and is of course applicable to this case; it, however, lends no more support to the Court's decision than does the common-law doctrine. The first decision of this Court regarding the role of civil courts in adjudicating church property disputes was There the Court canvassed the American authorities and concluded that where people had chosen to organize themselves into voluntary religious associations, and had agreed to be bound by the decisions of the hierarchy created to govern such associations, the civil courts could not be availed of to hear appeals from otherwise final decisions of such hierarchical authorities. The bases from which this principle was derived clearly had no constitutional dimension; there was not the slightest suggestion that the First Amendment or any other provision of the Constitution was relevant to the decision in that case. Instead the Court was merely recognizing and applying general rules as to the limited role which civil courts must have in settling private intraorganizational disputes. While those rules, and the reasons behind them, may seem especially relevant to intrachurch disputes, adherence or nonadherence to such principles was certainly not thought to present any First Amendment issues. For as the Court in Watson observed: "Religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints." The Court's equation of religious bodies with other private voluntary associations makes it clear that the principles *729 discussed in that case were not dependent upon those embodied in the First Amendment. Less than a year later Watson's observations about the roles of civil courts were followed in where the Court held that the appointed trustees of the property of a congregational church "cannot be removed from their trusteeship by a minority of the church society or meeting, without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules." Again, there was nothing to suggest that this was based upon anything but commonsense rules for deciding an intraorganizational dispute: in an organization which has provided for majority rule through certain procedures, a minority's attempt to usurp that rule and those procedures need be given no effect by civil courts. In the Court again recognized the principles underlying Watson in upholding a decision of the Supreme Court of the Philippine Islands that the petitioner was not entitled to the chaplaincy which he claimed because the decision as to whether he possessed the necessary qualifications for that post was one committed to the appropriate church authorities. In dicta which the Court today conveniently truncates, Mr. Justice Brandeis observed: "In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. Under like circumstances, effect is given in the courts to the determinations of the judicatory bodies established *730 by clubs and civil associations." Gonzalez clearly has no more relevance to the meaning of the First Amendment than do its two predecessors. The year 1952 was the first occasion on which this Court examined what limits the First and Fourteenth Amendments might place upon the ability of the States to entertain and resolve disputes over church property. In the Court reversed a decision of the New York Court of Appeals which had upheld a statute awarding control of the New York property of the Russian Orthodox Church to an American group seeking to terminate its relationships with the hierarchical Mother Church in Russia. The New York Legislature had concluded that the Communist government of Russia was actually in control of the Mother Church and that " `the Moscow Patriarchate was no longer capable of functioning as a true religious body, but had become a tool of the Soviet Government primarily designed to implement its foreign policy,' " at 107 n. 10, quoting from and the New York Court of Appeals sustained the statute against the constitutional attack. This Court, however, held the statute was a violation of the Free Exercise Clause, noting: "By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment." On remand from the decision in Kedroff, the New York Court of Appeals again held that the American *731 group was entitled to the church property at issue. This time relying upon the common law of the State, the Court of Appeals ruled that the Patriarch of Moscow was so dominated by the secular government of Russia that his appointee could not validly occupy the Church's property. On appeal, this Court reversed summarily, noting in its per curiam opinion that "the decision now under review rests on the same premises which were found to have underlain the enactment of the statute struck down in Kedroff." Nine years later, in Presbyterian the Court held that Georgia's common law, which implied a trust upon local church property for the benefit of the general church only on the condition that the general church adhere to its tenets of faith and practice existing at the time of affiliation by the local churches, was inconsistent with the First and Fourteenth Amendments and therefore could not be utilized to resolve church property disputes. The Georgia law was held impermissible because "[u]nder [the Georgia] approach, property rights do not turn on a church decision as to church doctrine. The standard of departure-from-doctrine, though it calls for resolution of ecclesiastical questions, is a creation of state, not church, law." Finally, in Md. & Va. the Court considered an appeal from a judgment of the Court of Appeals of Maryland upholding the dismissal of two actions brought by the Eldership seeking to prevent two of its local churches from withdrawing from that general religious association. The Eldership had also claimed the rights to select the *732 clergy and to control the property of the two local churches, but the Maryland courts, relying "upon provisions of state statutory law governing the holding of property by religious corporations, upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property," concluded that the Eldership had no right to invoke the State's authority to compel their local churches to remain within the fold or to succeed to control of their property. This Court dismissed the Eldership's contention that this judgment violated the First Amendment for want of a substantial federal question. Despite the Court's failure to do so, it does not seem very difficult to derive the operative constitutional principle from this line of decisions. As should be clear from even this cursory study, Watson, Bouldin, and Gonzalez have no direct relevance[*] to the question before us today: *733 whether the First Amendment, as made applicable to the States by the Fourteenth, prohibits Illinois from permitting its civil courts to settle religious property disputes in the manner presented to us on this record. I think it equally clear that the only cases which are relevant to that question—Kedroff, Kreshik, Hull, and Md. & Va. Churches—require that this question be answered in the negative. The rule of those cases, one which seems fairly implicit in the history of our First Amendment, is that the government may not displace the free religious choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect. That is what New York attempted to do in Kedroff and Kreshik, albeit perhaps for nonreligious reasons, and the Court refused to permit it. In Hull, the State transgressed the line drawn by the First Amendment when it applied a state-created rule of law based upon "departure from doctrine" to prevent the national hierarchy of the Presbyterian Church in the United States from seeking to reclaim possession and use of two local churches. When the Georgia courts themselves required an examination into whether there had been a departure from the doctrine of the church in order to apply this state-created rule, they went beyond mere application of neutral principles of law to such a dispute. There is nothing in this record to indicate that the Illinois courts have been instruments of any such impermissible intrusion by the State on one side or the other of a religious dispute. There is nothing in the Supreme Court of Illinois' opinion indicating that it placed its thumb on the scale in favor of the respondents. Instead that opinion appears to be precisely what it purports *734 to be: an application of neutral principles of law consistent with the decisions of this Court. Indeed, petitioners make absolutely no claim to the contrary. They agree that the Illinois courts should have decided the issues which they presented; but they contend that in doing so those courts should have deferred entirely to the representations of the announced representatives of the Mother Church. Such blind deference, however, is counseled neither by logic nor by the First Amendment. To make available the coercive powers of civil courts to rubber-stamp ecclesiastical decisions of hierarchical religious associations, when such deference is not accorded similar acts of secular voluntary associations, would, in avoiding the free exercise problems petitioners envision, itself create far more serious problems under the Establishment Clause. In any event the Court's decision in Md. & Va. Churches demonstrates that petitioners' position in this regard is untenable. And as I read that decision, it seems to me to compel affirmance of at least that portion of the Illinois court's decision which denied petitioners' request for the aid of the civil courts in enforcing its desire to divide the American-Canadian Diocese. See ante, at 720-724 (Part III). I see no distinction between the Illinois courts' refusal to place their weight behind the representatives of the Serbian Mother Church who sought to prevent portions of their American congregation from splitting off from that body and the Maryland courts' refusal to do the same thing for the Eldership of the Church of God. The Court today expressly eschews any explanation for its failure to follow Md. & Va. Churches, see ante, at 721, contenting itself with this conclusory statement: "The constitutional provisions of the American-Canadian Diocese were not so express that the civil *735 courts could enforce them without engaging in a searching and therefore impermissible inquiry into church polity." Ante, at 723. But comparison of the relevant discussions by the state tribunals regarding their consideration of church documents makes this claimed distinction seem quite specious. Compare Md. & Va. with Serbian Orthodox In conclusion, while there may be a number of good arguments that civil courts of a State should, as a matter of the wisest use of their authority, avoid adjudicating religious disputes to the maximum extent possible, they obviously cannot avoid all such adjudications. And while common-law principles like those discussed in Watson, Bouldin, and Gonzalez may offer some sound principles for those occasions when such adjudications are required, they are certainly not rules to which state courts are required to adhere by virtue of the Fourteenth Amendment. The principles which that Amendment, through its incorporation of the First, does enjoin upon the state courts—that they remain neutral on matters of religious doctrine—have not been transgressed by the Supreme Court of Illinois.

Justice Burger

concurring

First Nat. Bank of Boston v. Bellotti

https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/

https://www.courtlistener.com/api/rest/v3/clusters/109836/

1977-073

I join the opinion and judgment of the Court but write separately to raise some questions likely to arise in this area in the future. *796 A disquieting aspect of Massachusetts' position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form—as most do— to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case. Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related—and some not—to their publishing and broadcasting activities. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248-254 (1974). Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries to a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its "special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets . . . ." Post, at 809 (WHITE, J., dissenting). In terms of "unfair advantage in the political process" and "corporate domination of the electoral process," post, at 809-810, it could be argued that such media conglomerates as I describe *797 pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo, supra; ante, at 791 n. 30. In Tornillo, for example, we noted the serious contentions advanced that a result of the growth of modern media empires "has been to place in a few hands the power to inform the American people and shape public opinion." 418 U.S., at 250. In terms of Massachusetts' other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally.[1] Nor can it be said, even if relevant to First Amendment analysis—which it is not—that the former are more virtuous, wise, or restrained in the exercise of corporate power than are the latter. Cf. Columbia Broadcasting System v. Democratic National Comm., 412 U.S. 94, 124-125 (1973); 14 The Writings of Thomas Jefferson 46 (A. Libscomb ed. 1904) (letter to Dr. Walter Jones, Jan. 2, 1814). Thus, no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence. Despite these factual similarities between media and nonmedia corporations, those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the "institutional press"—which are not extended to those *798 who wish to express ideas other than by publishing a newspaper —might perceive no danger to institutional media corporations flowing from the position asserted by Massachusetts. Under this narrow reading of the Press Clause, government could perhaps impose on nonmedia corporations restrictions not permissible with respect to "media" enterprises. Cf. Bezanson, The New Free Press Guarantee, 63 Va. L. Rev. 731, 767-770 (1977).[2] The Court has not yet squarely resolved whether the Press Clause confers upon the "institutional press" any freedom from government restraint not enjoyed by all others.[3] I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a "special" or "institutional" privilege. See Lange, The Speech and Press Clauses, 23 UCLA L. Rev. 77, 88-99 (1975). The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group: "But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of *799 Religion and Government; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. . . . "This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy . . . ." A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford's The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734). Indeed most pre-First Amendment commentators "who employed the term `freedom of speech' with great frequency, used it synonomously with freedom of the press." L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960). Those interpreting the Press Clause as extending protection only to, or creating a special role for, the "institutional press" must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. Lange, supra, at 89-91; (b) argue that events after 1791 somehow operated to "constitutionalize" this interpretation, see Bezanson, supra n. 3, at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See Nimmer, supra n. 3, at 640-641. To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs,[4] while the Press Clause *800 focuses specifically on the liberty to disseminate expression broadly and "comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. Griffin, 303 U.S. 444, 452 (1938).[5] Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order—political and religious— devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally *801 were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication. The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange, supra, at 100-107. The very task of including some entities within the "institutional press" while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England—a system the First Amendment was intended to ban from this country. Lovell v. Griffin, supra, at 451-452. Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court's opinions supports such a confining approach to the scope of Press Clause protection.[6] Indeed, the Court has plainly intimated the contrary view: "Freedom of the press is a `fundamental personal right' which `is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' . . . The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow *802 of information to the public . . . ." Branzburg v. Hayes, 408 U.S. 665, 704-705 (1972), quoting Lovell v. Griffin, supra, at 450, 452. The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts' position poses serious questions. The evolution of traditional newspapers into modern corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court's refusal to sustain § 8's serious and potentially dangerous restriction on the freedom of political speech. Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. "[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. `. . . the liberty of the press is no greater and no less . . .' than the liberty of every citizen of the Republic." Pennekamp v. Florida, 328 U.S. 331, 364 (1946) (Frankfurter, J., concurring). In short, the First Amendment does not "belong" to any definable category of persons or entities: It belongs to all who exercise its freedoms. MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR.

I join the opinion and judgment of the Court but write separately to raise some questions likely to arise in this area in the future. *796 A disquieting aspect of Massachusetts' position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form—as most do— to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case. Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related—and some not—to their publishing and broadcasting activities. See Miami Herald Publishing Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries to a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its "special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets" Post, at 809 (WHITE, J., dissenting). In terms of "unfair advantage in the political process" and "corporate domination of the electoral process," post, at 809-810, it could be argued that such media conglomerates as I describe *797 pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing ante, at 791 0. In for example, we noted the serious contentions advanced that a result of the growth of modern media empires "has been to place in a few hands the power to inform the American people and shape public opinion." In terms of Massachusetts' other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally.[1] Nor can it be said, even if relevant to First Amendment analysis—which it is not—that the former are more virtuous, wise, or restrained in the exercise of corporate power than are the latter. Cf. Columbia Broadcasting ; 14 The Writings of Thomas Jefferson 46 (A. Libscomb ed. 1904) (letter to Dr. Walter Jones, Jan. 2, 1814). Thus, no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence. Despite these factual similarities between media and nonmedia corporations, those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the "institutional press"—which are not extended to those *798 who wish to express ideas other than by publishing a newspaper —might perceive no danger to institutional media corporations flowing from the position asserted by Massachusetts. Under this narrow reading of the Press Clause, government could perhaps impose on nonmedia corporations restrictions not permissible with respect to "media" enterprises. Cf. The New Free Press Guarantee,[2] The Court has not yet squarely resolved whether the Press Clause confers upon the "institutional press" any freedom from government restraint not enjoyed by all others.[3] I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a "special" or "institutional" privilege. See The Speech and Press Clauses, The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group: "But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of *799 Religion and Government; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. "This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy" A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford's The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734). Indeed most pre-First Amendment commentators "who employed the term `freedom of speech' with great frequency, used it synonomously with freedom of the press." L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960). Those interpreting the Press Clause as extending protection only to, or creating a special role for, the "institutional press" must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. ; (b) argue that events after 1791 somehow operated to "constitutionalize" this interpretation, see at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See at 640-641. To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs,[4] while the Press Clause *800 focuses specifically on the liberty to disseminate expression broadly and "comprehends every sort of publication which affords a vehicle of information and opinion."[5] Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order—political and religious— devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally *801 were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication. The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See The very task of including some entities within the "institutional press" while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England—a system the First Amendment was intended to ban from this country. at 451-. Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court's opinions supports such a confining approach to the scope of Press Clause protection.[6] Indeed, the Court has plainly intimated the contrary view: "Freedom of the press is a `fundamental personal right' which `is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' The informative function asserted by representatives of the organized press is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow *802 of information to the public" quoting at 450, The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts' position poses serious questions. The evolution of traditional newspapers into modern corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court's refusal to sustain 8's serious and potentially dangerous restriction on the freedom of political speech. Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. "[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. `. the liberty of the press is no greater and no less' than the liberty of every citizen of the Republic." In short, the First Amendment does not "belong" to any definable category of persons or entities: It belongs to all who exercise its freedoms. MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR.

Justice White

majority

Chemical Manufacturers Assn. v. NRDC

https://www.courtlistener.com/opinion/111358/chemical-manufacturers-assn-v-nrdc/

https://www.courtlistener.com/api/rest/v3/clusters/111358/

1984-035

These cases present the question whether the Environmental Protection Agency (EPA) may issue certain variances from toxic pollutant effluent limitations promulgated under the Clean Water Act, 86 Stat. 816, as amended, 33 U.S. C. § 1251 et seq.[1] I As part of a consolidated lawsuit, respondent Natural Resources Defense Council (NRDC) sought a declaration that § 301(l) of the Clean Water Act, 33 U.S. C. § 1311(l), prohibited EPA from issuing "fundamentally different factor" (FDF) variances for pollutants listed as toxic under the Act.[2] Petitioners EPA and Chemical Manufacturers Association (CMA) argued otherwise. To understand the nature of this controversy, some background with respect to the statute and the case law is necessary. The Clean Water Act, the basic federal legislation dealing with water pollution, assumed its present form as the result of extensive amendments in 1972 and 1977. For direct dischargers — those who expel waste directly into navigable waters — the Act calls for a two-phase program of technology-based effluent limitations, commanding that dischargers comply with the best practicable control technology currently available (BPT) by July 1, 1977, and subsequently meet the generally more stringent effluent standard consistent with the best available technology economically achievable (BAT).[3] *119 Indirect dischargers — those whose waste water passes through publicly owned treatment plants — are similarly required to comply with pretreatment standards promulgated by EPA under § 307 of the Act, 33 U.S. C. § 1317(b), for pollutants not susceptible to treatment by sewage systems or which would interfere with the operation of those systems. Relying upon legislative history suggesting that pretreatment standards are to be comparable to limitations for direct dischargers, see H. R. Rep. No. 95-830, p. 87 (1977), and pursuant to a consent decree,[4] EPA has set effluent limitations for indirect dischargers under the same two-phase approach applied to those discharging waste directly into navigable waters. Thus, for both direct and indirect dischargers, EPA considers specific statutory factors[5] and promulgates regulations creating categories and classes of sources and setting uniform discharge limitations for those classes and categories. Since *120 application of the statutory factors varies on the basis of the industrial process used and a variety of other factors, EPA has faced substantial burdens in collecting information adequate to create categories and classes suitable for uniform effluent limits, a burden complicated by the time deadlines it has been under to accomplish the task.[6] Some plants may find themselves classified within a category of sources from which they are, or claim to be, fundamentally different in terms of the statutory factors. As a result, EPA has developed its FDF variance as a mechanism for ensuring that its necessarily rough-hewn categories do not unfairly burden atypical plants.[7] Any interested party may seek an FDF *121 variance to make effluent limitations either more or less stringent if the standards applied to a given source, because of factors fundamentally different from those considered by *122 EPA in setting the limitation, are either too lenient or too strict.[8] The 1977 amendments to the Clean Water Act reflected Congress' increased concern with the dangers of toxic pollutants. The Act, as then amended, allows specific statutory modifications of effluent limitations for economic and water-quality *123 reasons in §§ 301(c) and (g).[9] Section 301(l), however, added by the 1977 amendments, provides: "The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) of this Act." 91 Stat. 1590. In the aftermath of the 1977 amendments, EPA continued its practice of occasionally granting FDF variances for BPT *124 requirements. The Agency also promulgated regulations explicitly allowing FDF variances for pretreatment standards[10] and BAT requirements.[11] Under these regulations, EPA granted FDF variances, but infrequently.[12] As part of its consolidated lawsuit, respondent NRDC here challenged pretreatment standards for indirect dischargers and sought a declaration that § 301(l) barred any FDF variance with respect to toxic pollutants.[13] In an earlier case, the Fourth Circuit had rejected a similar argument, finding that § 301(l) was ambiguous on the issue of whether it applied to FDF variances and therefore deferring to the administrative agency's interpretation that such variances were permitted. Appalachian Power Co. v. Train, 620 F.2d 1040, 1047-1048 (1980). Contrariwise, the Third Circuit here ruled in favor of NRDC, and against petitioners EPA and CMA, holding that § 301(l) forbids the issuance of FDF variances for toxic pollutants. National Assn. of Metal Finishers *125 v. EPA, 719 F.2d 624 (1983). We granted certiorari to resolve this conflict between the Courts of Appeals and to decide this important question of environmental law. 466 U.S. 957 (1984). We reverse. II Section 301(l) states that EPA may not "modify" any requirement of § 301 insofar as toxic materials are concerned. EPA insists that § 301(l) prohibits only those modifications expressly permitted by other provisions of § 301, namely, those that § 301(c) and § 301(g) would allow on economic or water-quality grounds. Section 301(l), it is urged, does not address the very different issue of FDF variances. This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that EPA might have adopted but only that EPA's understanding of this very "complex statute" is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA. Train v. NRDC, 421 U.S. 60, 75, 87 (1975); see also Chevron U. S. A. Inc. v. NRDC, 467 U.S. 837 (1984). Of course, if Congress has clearly expressed an intent contrary to that of the Agency, our duty is to enforce the will of Congress. Chevron, supra, at 843, n. 9; SEC v. Sloan, 436 U.S. 103, 117-118 (1978). A NRDC insists that the language of § 301(l) is itself enough to require affirmance of the Court of Appeals, since on its face it forbids any modifications of the effluent limitations that EPA must promulgate for toxic pollutants. If the word "modify" in § 301(l) is read in its broadest sense, that is, to encompass any change or alteration in the standards, NRDC is correct. But it makes little sense to construe the section to forbid EPA to amend its own standards, even to correct an error or to impose stricter requirements. Furthermore, *126 reading § 301(l) in this manner would forbid what § 307(b)(2) expressly directs: EPA is there required to "revise" its pretreatment standards "from time to time, as control technology, processes, operating methods, or other alternatives change." As NRDC does and must concede, Tr. of Oral Arg. 25-26, § 301(l) cannot be read to forbid every change in the toxic waste standards. The word "modify" thus has no plain meaning as used in § 301(l), and is the proper subject of construction by EPA and the courts. NRDC would construe it to forbid the kind of alteration involved in an FDF variance, while the Agency would confine the section to prohibiting the partial modifications that § 301(c) would otherwise permit. Since EPA asserts that the FDF variance is more like a revision permitted by § 307 than it is like a § 301(c) or (g) modification, and since, as will become evident, we think there is a reasonable basis for such a position, we conclude that the statutory language does not foreclose the Agency's view of the statute. We should defer to that view unless the legislative history or the purpose and structure of the statute clearly reveal a contrary intent on the part of Congress. NRDC submits that the legislative materials evince such a contrary intent. We disagree. B The legislative history of § 301(l) is best understood in light of its evolution. The 1972 amendments to the Act added § 301(c), which allowed EPA to waive BAT and pretreatment requirements on a case-by-case basis when economic circumstances justified such a waiver. Pub. L. 92-500, 86 Stat. 845. In 1977, the Senate proposed amending § 301(c) by prohibiting such waivers for toxic pollutants. See S. 1952, 92d Cong., 2d Sess., 30 (1977), Leg. Hist. 584,[14] and S. Rep. *127 No. 95-370, p. 44 (1977), Leg. Hist. 677. At the same time, the Senate bill added what became § 301(g), which allowed waivers from BAT and pretreatment standards where such waivers would not impair water quality, but which, like § 301(c), prohibited waivers for toxic pollutants. S. 1952, at 28-29, Leg. Hist. 582-583.[15] The bill did not contain § 301(l). That section was proposed by the Conference Committee, which also deleted the toxic pollutant prohibition in § 301(c) and redrafted § 301(g) to prohibit water-quality waivers for conventional pollutants and thermal discharges as well as for toxic pollutants.[16] While the Conference Committee Report did not explain the reason for proposing § 301(l), Representative Roberts, the House floor manager, stated: "Due to the nature of toxic pollutants, those identified for regulation will not be subject to waivers from or modification of the requirements prescribed under this section, specifically, neither section 301(c) waivers based on the economic capability of the discharger nor 301(g) waivers based on water quality considerations shall be available." Leg. Hist. 328-329 (emphasis added). Another indication that Congress did not intend to forbid FDF waivers as well as §§ 301(c) and (g) modifications is its silence on the issue. Under NRDC's theory, the Conference Committee did not merely tinker with the wording of the Senate bill, but boldly moved to eliminate FDF variances. But if that was the Committee's intention, it is odd that the *128 Committee did not communicate it to either House, for only a few months before we had construed the Act to permit the very FDF variance NRDC insists the Conference Committee was silently proposing to abolish. In E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977), we upheld EPA's class and category effluent limitations, relying on the availability of FDF waivers. Id., at 128. Congress was undoubtedly aware of Du Pont,[17] and absent an expression of legislative will, we are reluctant to infer an intent to amend the Act so as to ignore the thrust of an important decision. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 266-267 (1979).[18] *129 NRDC argues that Congress' discussion of the Act's provisions supports its position. Several legislators' comments seemed to equate "modifications" with "waivers" or "variances."[19] Many of these statements, however, came in the specific context of discussing the "waiver" provisions of §§ 301(c) and (g), not the prohibition in § 301(l). See, e. g., 123 Cong. Rec. 39183-39184 (1977), Leg. Hist. 458, 461 (Sen. Muskie); 123 Cong. Rec. 38961 (1977), Leg. Hist. 331 (Rep. Roberts); S. Rep. No. 95-370, pp. 40-44, Leg. Hist. 673-677 (discussing water-quality based modifications). Simply because Members of Congress or Committees referred to modifications authorized by §§ 301(c) and (g) as "variance" provisions, does not mean that FDF variances are also modifications barred by § 301(l). After examining the wording and legislative history of the statute, we agree with EPA and CMA that the legislative history itself does not evince an unambiguous congressional intention to forbid all FDF waivers with respect to toxic materials. Chevron, 467 U. S., at 842-843, and n. 9. C Neither are we convinced that FDF variances threaten to frustrate the goals and operation of the statutory scheme set *130 up by Congress. The nature of FDF variances has been spelled out both by this Court and by the Agency itself. The regulation explains that its purpose is to remedy categories which were not accurately drawn because information was either not available to or not considered by the Administrator in setting the original categories and limitations. 40 CFR § 403.13(b) (1984). An FDF variance does not excuse compliance with a correct requirement, but instead represents an acknowledgment that not all relevant factors were taken sufficiently into account in framing that requirement originally, and that those relevant factors, properly considered, would have justified — indeed, required — the creation of a subcategory for the discharger in question. As we have recognized, the FDF variance is a laudable corrective mechanism, "an acknowledgment that the uniform . . . limitation was set without reference to the full range of current practices, to which the Administrator was to refer." EPA v. National Crushed Stone Assn., 449 U.S. 64, 77-78 (1980). It is, essentially, not an exception to the standard-setting process, but rather a more fine-tuned application of it.[20] We are not persuaded by NRDC's argument that granting FDF variances is inconsistent with the goal of uniform effluent limitations under the Act. Congress did intend uniformity among sources in the same category, demanding that "similar point sources with similar characteristics . . . meet similar effluent limitations," S. Rep. No. 92-1236, p. 126 (1972). EPA, however, was admonished to take into account the diversity within each industry by establishing appropriate subcategories. Leg. Hist. 455. *131 NRDC concedes that EPA could promulgate rules under § 307 of the Act[21] creating a subcategory for each source which is fundamentally different from the rest of the class under the factors the EPA must consider in drawing categories. The same result is produced by the issuance of an FDF variance for the same failure properly to subdivide a broad category.[22] Since the dispute is therefore reduced to an argument over the means used by EPA to define subcategories of indirect dischargers in order to achieve the goals of the Act, these are particularly persuasive cases for deference to the Agency's interpretation. Cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543 (1978); NLRB v. Bell Aerospace Co., 416 U.S. 267, 293 (1974). NRDC argues, echoing the concern of the Court of Appeals below, that allowing FDF variances will render meaningless the § 301(l) prohibition against modifications on the basis of economic and water-quality factors. That argument ignores the clear difference between the purpose of FDF waivers and that of §§ 301(c) and (g) modifications, a difference we explained in National Crushed Stone. A discharger that satisfies the requirements of § 301(c) qualifies for a variance "simply because [it] could not afford a compliance cost that is not fundamentally different from those the Administrator has already considered" in creating a category and setting an effluent limitation. 449 U.S., at 78. A § 301(c) modification forces "a displacement of calculations already performed, not because those calculations were incomplete or had unexpected effects, but only because the costs happened to fall on *132 one particular operator, rather than on another who might be economically better off." Ibid. FDF variances are specifically unavailable for the grounds that would justify the statutory modifications. 40 CFR §§ 403.13(e)(3) and (4) (1984). Both a source's inability to pay the foreseen costs, grounds for a § 301(c) modification, and the lack of a significant impact on water quality, grounds for a § 301(g) modification, are irrelevant under FDF variance procedures. Ibid.; see also Crown Simpson Pulp Co. v. Costle, 642 F.2d 323 (CA9), cert. denied, 454 U.S. 1053 (1981). EPA and CMA point out that the availability of FDF variances makes bearable the enormous burden faced by EPA in promulgating categories of sources and setting effluent limitations. Acting under stringent timetables,[23] EPA must collect and analyze large amounts of technical information concerning complex industrial categories.[24] Understandably, *133 EPA may not be apprised of and will fail to consider unique factors applicable to atypical plants during the categorical rulemaking process, and it is thus important that EPA's nationally binding categorical pretreatment standards for indirect dischargers be tempered with the flexibility that the FDF variance mechanism offers, a mechanism repugnant to neither the goals nor the operation of the Act.[25] *134A III Viewed in its entirety, neither the language nor the legislative history of the Act demonstrates a clear congressional intent to forbid EPA's sensible variance mechanism for tailoring the categories it promulgates. In the absence of a congressional directive to the contrary, we accept EPA's conclusion that § 301(l) does not prohibit FDF variances. That interpretation gives the term "modify" a consistent meaning in §§ 301(c), (g), and (l), and draws support from the legislative evolution of § 301(l) and from congressional silence on whether it intended to forbid FDF variances altogether and thus to obviate our decision in Du Pont. Here we are not dealing with an agency's change of position with the advent of a different administration, but rather with EPA's consistent interpretation since the 1970's.[26] NRDC argues that its construction of the statute is better supported by policy considerations. But we do not sit to judge the relative wisdom of competing statutory interpretations. Here EPA's construction, fairly understood, is not inconsistent with the language, goals, or operation of the Act. Nor does the administration of EPA's regulation undermine the will of Congress.[27] The judgment of the Court of Appeals is reversed. It is so ordered.

These cases present the question whether the Environmental Protection Agency (EPA) may issue certain variances from toxic pollutant effluent limitations promulgated under the Clean Water Act, as amended, 33 U.S. C. 1251 et seq.[1] I As part of a consolidated lawsuit, respondent Natural Resources Defense Council (NRDC) sought a declaration that 301(l) of the Clean Water Act, 33 U.S. C. 1311(l), prohibited EPA from issuing "fundamentally different factor" (FDF) variances for pollutants listed as toxic under the Act.[2] Petitioners EPA and Chemical Manufacturers Association (CMA) argued otherwise. To understand the nature of this controversy, some background with respect to the statute and the case law is necessary. The Clean Water Act, the basic federal legislation dealing with water pollution, assumed its present form as the result of extensive amendments in 1972 and 1977. For direct dischargers — those who expel waste directly into navigable waters — the Act calls for a two-phase program of technology-based effluent limitations, commanding that dischargers comply with the best practicable control technology currently available (BPT) by July 1, 1977, and subsequently meet the generally more stringent effluent standard consistent with the best available technology economically achievable (BAT).[3] *119 Indirect dischargers — those whose waste water passes through publicly owned treatment plants — are similarly required to comply with pretreatment standards promulgated by EPA under 307 of the Act, 33 U.S. C. 1317(b), for pollutants not susceptible to treatment by sewage systems or which would interfere with the operation of those systems. Relying upon legislative history suggesting that pretreatment standards are to be comparable to limitations for direct dischargers, see H. R. Rep. No. 95-830, p. 87 and pursuant to a consent decree,[4] EPA has set effluent limitations for indirect dischargers under the same two-phase approach applied to those discharging waste directly into navigable waters. Thus, for both direct and indirect dischargers, EPA considers specific statutory factors[5] and promulgates regulations creating categories and classes of sources and setting uniform discharge limitations for those classes and categories. Since *120 application of the statutory factors varies on the basis of the industrial process used and a variety of other factors, EPA has faced substantial burdens in collecting information adequate to create categories and classes suitable for uniform effluent limits, a burden complicated by the time deadlines it has been under to accomplish the task.[6] Some plants may find themselves classified within a category of sources from which they are, or claim to be, fundamentally different in terms of the statutory factors. As a result, EPA has developed its FDF variance as a mechanism for ensuring that its necessarily rough-hewn categories do not unfairly burden atypical plants.[7] Any interested party may seek an FDF *121 variance to make effluent limitations either more or less stringent if the standards applied to a given source, because of factors fundamentally different from those considered by *122 EPA in setting the limitation, are either too lenient or too strict.[8] The 1977 amendments to the Clean Water Act reflected Congress' increased concern with the dangers of toxic pollutants. The Act, as then amended, allows specific statutory modifications of effluent limitations for economic and water-quality *123 reasons in 301(c) and (g).[9] Section 301(l), however, added by the 1977 amendments, provides: "The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) of this Act." In the aftermath of the 1977 amendments, EPA continued its practice of occasionally granting FDF variances for BPT *124 requirements. The Agency also promulgated regulations explicitly allowing FDF variances for pretreatment standards[10] and BAT requirements.[11] Under these regulations, EPA granted FDF variances, but infrequently.[12] As part of its consolidated lawsuit, respondent NRDC here challenged pretreatment standards for indirect dischargers and sought a declaration that 301(l) barred any FDF variance with respect to toxic pollutants.[13] In an earlier case, the Fourth Circuit had rejected a similar argument, finding that 301(l) was ambiguous on the issue of whether it applied to FDF variances and therefore deferring to the administrative agency's interpretation that such variances were permitted. Appalachian Power Contrariwise, the Third Circuit here ruled in favor of NRDC, and against petitioners EPA and CMA, holding that 301(l) forbids the issuance of FDF variances for toxic pollutants. National Assn. of Metal Finishers We granted certiorari to resolve this conflict between the Courts of Appeals and to decide this important question of environmental law. We reverse. II Section 301(l) states that EPA may not "modify" any requirement of 301 insofar as toxic materials are concerned. EPA insists that 301(l) prohibits only those modifications expressly permitted by other provisions of 301, namely, those that 301(c) and 301(g) would allow on economic or water-quality grounds. Section 301(l), it is urged, does not address the very different issue of FDF variances. This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that EPA might have adopted but only that EPA's understanding of this very "complex statute" is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA. ; see also U. S. A. Of course, if Congress has clearly expressed an intent contrary to that of the Agency, our duty is to enforce the will of Congress. ; A NRDC insists that the language of 301(l) is itself enough to require affirmance of the Court of Appeals, since on its face it forbids any modifications of the effluent limitations that EPA must promulgate for toxic pollutants. If the word "modify" in 301(l) is read in its broadest sense, that is, to encompass any change or alteration in the standards, NRDC is correct. But it makes little sense to construe the section to forbid EPA to amend its own standards, even to correct an error or to impose stricter requirements. Furthermore, *126 reading 301(l) in this manner would forbid what 307(b)(2) expressly directs: EPA is there required to "revise" its pretreatment standards "from time to time, as control technology, processes, operating methods, or other alternatives change." As NRDC does and must concede, Tr. of Oral Arg. 25-26, 301(l) cannot be read to forbid every change in the toxic waste standards. The word "modify" thus has no plain meaning as used in 301(l), and is the proper subject of construction by EPA and the courts. NRDC would construe it to forbid the kind of alteration involved in an FDF variance, while the Agency would confine the section to prohibiting the partial modifications that 301(c) would otherwise permit. Since EPA asserts that the FDF variance is more like a revision permitted by 307 than it is like a 301(c) or (g) modification, and since, as will become evident, we think there is a reasonable basis for such a position, we conclude that the statutory language does not foreclose the Agency's view of the statute. We should defer to that view unless the legislative history or the purpose and structure of the statute clearly reveal a contrary intent on the part of Congress. NRDC submits that the legislative materials evince such a contrary intent. We disagree. B The legislative history of 301(l) is best understood in light of its evolution. The 1972 amendments to the Act added 301(c), which allowed EPA to waive BAT and pretreatment requirements on a case-by-case basis when economic circumstances justified such a waiver. Stat. 845. In 1977, the Senate proposed amending 301(c) by prohibiting such waivers for toxic pollutants. See S. 1952, 92d Cong., 2d Sess., 30 Leg. Hist. 584,[14] and S. Rep. *127 No. 95-370, p. 44 Leg. Hist. 677. At the same time, the Senate bill added what became 301(g), which allowed waivers from BAT and pretreatment standards where such waivers would not impair water quality, but which, like 301(c), prohibited waivers for toxic pollutants. S. 1952, at 28-29, Leg. Hist. 582-583.[15] The bill did not contain 301(l). That section was proposed by the Conference Committee, which also deleted the toxic pollutant prohibition in 301(c) and redrafted 301(g) to prohibit water-quality waivers for conventional pollutants and thermal discharges as well as for toxic pollutants.[16] While the Conference Committee Report did not explain the reason for proposing 301(l), Representative Roberts, the House floor manager, stated: "Due to the nature of toxic pollutants, those identified for regulation will not be subject to waivers from or modification of the requirements prescribed under this section, specifically, neither section 301(c) waivers based on the economic capability of the discharger nor 301(g) waivers based on water quality considerations shall be available." Leg. Hist. 328-329 (emphasis added). Another indication that Congress did not intend to forbid FDF waivers as well as 301(c) and (g) modifications is its silence on the issue. Under NRDC's theory, the Conference Committee did not merely tinker with the wording of the Senate bill, but boldly moved to eliminate FDF variances. But if that was the Committee's intention, it is odd that the *128 Committee did not communicate it to either House, for only a few months before we had construed the Act to permit the very FDF variance NRDC insists the Conference Committee was silently proposing to abolish. In E. I. du Pont de Nemours & we upheld EPA's class and category effluent limitations, relying on the availability of FDF waivers. Congress was undoubtedly aware of Du Pont,[17] and absent an expression of legislative will, we are reluctant to infer an intent to amend the Act so as to ignore the thrust of an important decision.[18] *129 NRDC argues that Congress' discussion of the Act's provisions supports its position. Several legislators' comments seemed to equate "modifications" with "waivers" or "variances."[19] Many of these statements, however, came in the specific context of discussing the "waiver" provisions of 301(c) and (g), not the prohibition in 301(l). See, e. g., 123 Cong. Rec. 39183-39184 Leg. Hist. 458, 461 (Sen. Muskie); 123 Cong. Rec. 38961 Leg. Hist. 331 (Rep. Roberts); S. Rep. No. 95-370, pp. 40-44, Leg. Hist. 673-677 (discussing water-quality based modifications). Simply because Members of Congress or Committees referred to modifications authorized by 301(c) and (g) as "variance" provisions, does not mean that FDF variances are also modifications barred by 301(l). After examining the wording and legislative history of the statute, we agree with EPA and CMA that the legislative history itself does not evince an unambiguous congressional intention to forbid all FDF waivers with respect to toxic materials. -843, and n. 9. C Neither are we convinced that FDF variances threaten to frustrate the goals and operation of the statutory scheme set *130 up by Congress. The nature of FDF variances has been spelled out both by this Court and by the Agency itself. The regulation explains that its purpose is to remedy categories which were not accurately drawn because information was either not available to or not considered by the Administrator in setting the original categories and limitations. 40 CFR 403.13(b) An FDF variance does not excuse compliance with a correct requirement, but instead represents an acknowledgment that not all relevant factors were taken sufficiently into account in framing that requirement originally, and that those relevant factors, properly considered, would have justified — indeed, required — the creation of a subcategory for the discharger in question. As we have recognized, the FDF variance is a laudable corrective mechanism, "an acknowledgment that the uniform limitation was set without reference to the full range of current practices, to which the Administrator was to refer." It is, essentially, not an exception to the standard-setting process, but rather a more fine-tuned application of it.[20] We are not persuaded by NRDC's argument that granting FDF variances is inconsistent with the goal of uniform effluent limitations under the Act. Congress did intend uniformity among sources in the same category, demanding that "similar point sources with similar characteristics meet similar effluent limitations," S. Rep. No. 92-1236, p. 126 (1972). EPA, however, was admonished to take into account the diversity within each industry by establishing appropriate subcategories. Leg. Hist. 455. *131 NRDC concedes that EPA could promulgate rules under 307 of the Act[21] creating a subcategory for each source which is fundamentally different from the rest of the class under the factors the EPA must consider in drawing categories. The same result is produced by the issuance of an FDF variance for the same failure properly to subdivide a broad category.[22] Since the dispute is therefore reduced to an argument over the means used by EPA to define subcategories of indirect dischargers in order to achieve the goals of the Act, these are particularly persuasive cases for deference to the Agency's interpretation. Cf. Vermont Yankee Nuclear Power ; NRDC argues, echoing the concern of the Court of Appeals below, that allowing FDF variances will render meaningless the 301(l) prohibition against modifications on the basis of economic and water-quality factors. That argument ignores the clear difference between the purpose of FDF waivers and that of 301(c) and (g) modifications, a difference we explained in National Crushed Stone. A discharger that satisfies the requirements of 301(c) qualifies for a variance "simply because [it] could not afford a compliance cost that is not fundamentally different from those the Administrator has already considered" in creating a category and setting an effluent A 301(c) modification forces "a displacement of calculations already performed, not because those calculations were incomplete or had unexpected effects, but only because the costs happened to fall on *132 one particular operator, rather than on another who might be economically better off." FDF variances are specifically unavailable for the grounds that would justify the statutory modifications. 40 CFR 403.13(e)(3) and (4) Both a source's inability to pay the foreseen costs, grounds for a 301(c) modification, and the lack of a significant impact on water quality, grounds for a 301(g) modification, are irrelevant under FDF variance procedures. ; see also Crown Simpson Pulp (CA9), cert. denied, EPA and CMA point out that the availability of FDF variances makes bearable the enormous burden faced by EPA in promulgating categories of sources and setting effluent limitations. Acting under stringent timetables,[23] EPA must collect and analyze large amounts of technical information concerning complex industrial categories.[24] Understandably, *133 EPA may not be apprised of and will fail to consider unique factors applicable to atypical plants during the categorical rulemaking process, and it is thus important that EPA's nationally binding categorical pretreatment standards for indirect dischargers be tempered with the flexibility that the FDF variance mechanism offers, a mechanism repugnant to neither the goals nor the operation of the Act.[25] *134A III Viewed in its entirety, neither the language nor the legislative history of the Act demonstrates a clear congressional intent to forbid EPA's sensible variance mechanism for tailoring the categories it promulgates. In the absence of a congressional directive to the contrary, we accept EPA's conclusion that 301(l) does not prohibit FDF variances. That interpretation gives the term "modify" a consistent meaning in 301(c), (g), and (l), and draws support from the legislative evolution of 301(l) and from congressional silence on whether it intended to forbid FDF variances altogether and thus to obviate our decision in Du Pont. Here we are not dealing with an agency's change of position with the advent of a different administration, but rather with EPA's consistent interpretation since the 1970's.[26] NRDC argues that its construction of the statute is better supported by policy considerations. But we do not sit to judge the relative wisdom of competing statutory interpretations. Here EPA's construction, fairly understood, is not inconsistent with the language, goals, or operation of the Act. Nor does the administration of EPA's regulation undermine the will of Congress.[27] The judgment of the Court of Appeals is reversed. It is so ordered.

Justice O'Connor

majority

O'Sullivan v. Boerckel

https://www.courtlistener.com/opinion/118296/osullivan-v-boerckel/

https://www.courtlistener.com/api/rest/v3/clusters/118296/

1998-066

Federal habeas relief is available to state prisoners only after they have exhausted their claims in state court. 28 U.S. C. §§ 2254(b)(1), (c) (1994 ed. and Supp. III). In this case, we are asked to decide whether a state prisoner must present his claims to a state supreme court in a petition for *840 discretionary review in order to satisfy the exhaustion requirement. We conclude that he must. I In 1977, respondent Darren Boerckel was tried in the Circuit Court of Montgomery County, Illinois, for the rape, burglary, and aggravated battery of an 87-year-old woman. The central evidence against him at trial was his written confession to the crimes, a confession admitted over Boerckel's objection. The jury convicted Boerckel on all three charges, and he was sentenced to serve 20 to 60 years' imprisonment on the rape charge, and shorter terms on the other two charges, with all sentences to be served concurrently. Boerckel appealed his convictions to the Appellate Court of Illinois, raising several issues. He argued, among other things, that his confession should have been suppressed because the confession was the fruit of an illegal arrest, because the confession was coerced, and because he had not knowingly and intelligently waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Boerckel also claimed that prosecutorial misconduct denied him a fair trial, that he had been denied discovery of exculpatory material held by the police, and that the evidence was insufficient to support his conviction. The Illinois Appellate Court, with one justice dissenting, rejected Boerckel's claims and affirmed his convictions and sentences. People v. Boerckel, 68 Ill. App. 3d 103, 385 N.E.2d 815 (1979). Boerckel next filed a petition for leave to appeal to the Illinois Supreme Court. In this petition, he raised only three issues. Boerckel claimed first that his confession was the fruit of an unlawful arrest because, contrary to the Appellate Court's ruling, he was under arrest when he gave his confession. Boerckel also contended that he was denied a fair trial by prosecutorial misconduct and that he had been erroneously denied discovery of exculpatory material *841 in the possession of the police. The Illinois Supreme Court denied the petition for leave to appeal, and this Court denied Boerckel's subsequent petition for a writ of certiorari. Boerckel v. Illinois, 447 U.S. 911 (1980). In 1994, Boerckel filed a pro se petition for a writ of habeas corpus under 28 U.S. C. § 2254 in the United States District Court for the Central District of Illinois. The District Court appointed counsel for Boerckel, and Boerckel's counsel filed an amended petition in March 1995. The amended petition asked for relief on six grounds: (1) that Boerckel had not knowingly and intelligently waived his Miranda rights; (2) that his confession was not voluntary; (3) that the evidence against him was insufficient to sustain the conviction; (4) that his confession was the fruit of an illegal arrest; (5) that he received ineffective assistance of counsel at trial and on appeal; and (6) that his right to discovery of exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963), was violated. In an order dated November 15, 1995, the District Court found, as relevant here, that Boerckel had procedurally defaulted his first, second, and third claims by failing to include them in his petition for leave to appeal to the Illinois Supreme Court. No. 94-3258 (CD Ill.), pp. 4-10. Boerckel attempted to overcome the procedural defaults by presenting evidence that he fell within the "fundamental miscarriage of justice" exception to the procedural default rule. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). At a hearing on this issue, Boerckel argued that he was actually innocent of the offenses for which he had been convicted and he presented evidence that he claimed showed that two other men were responsible for the crimes. In a subsequent ruling, the District Court concluded that Boerckel had failed to satisfy the standards established in Schlup v. Delo, 513 U.S. 298 (1995), for establishing the "fundamental miscarriage of justice" exception, and thus held that Boerckel could not overcome the procedural bars preventing review *842 of his claims. No. 94-3258 (CD Ill., Oct. 28, 1996), pp. 14-15. After rejecting Boerckel's remaining claims for relief, the District Court denied his habeas petition. Id., at 18. On appeal, the Court of Appeals for the Seventh Circuit considered one question, namely, whether Boerckel had procedurally defaulted the first three claims in his habeas petition (whether he knowingly and intelligently waived his Miranda rights, whether his confession was voluntary, and whether the evidence was sufficient to support a verdict) by failing to raise those claims in his petition for leave to appeal to the Illinois Supreme Court. The Court of Appeals reversed the judgment of the District Court denying Boerckel's habeas petition and remanded for further proceedings. 135 F.3d 1194 (1998). The court concluded that Boerckel was not required to present his claims in a petition for discretionary review to the Illinois Supreme Court to satisfy the exhaustion requirement. Id., at 1199-1202. Thus, according to the Court of Appeals, Boerckel had not procedurally defaulted those claims. Id., at 1202. We granted certiorari to resolve a conflict in the Courts of Appeals on this issue. 525 U.S. 999 (1998). Compare e. g., Richardson v. Procunier, 762 F.2d 429 (CA5 1985) (must file petition for discretionary review), with Dolny v. Erickson, 32 F.3d 381 (CA8 1994) (petition for discretionary review not required), cert. denied, 513 U.S. 1111 (1995). II Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241 (1886), is now codified at 28 U.S. C. § 2254(b)(1) (1994 ed., Supp. III). This doctrine, however, raises a recurring question: What state remedies must a habeas petitioner *843 invoke to satisfy the federal exhaustion requirement? See Castille v. Peoples, 489 U.S. 346, 349-350 (1989); Wainwright v. Sykes, 433 U.S. 72, 78 (1977). The particular question posed by this case is whether a prisoner must seek review in a state court of last resort when that court has discretionary control over its docket. Illinois law provides for a two-tiered appellate review process. Criminal defendants are tried in the local circuit courts, and although some criminal appeals (e. g., those in which the death penalty is imposed) are heard directly by the Supreme Court of Illinois, most criminal appeals are heard first by an intermediate appellate court, the Appellate Court of Illinois. Ill. Sup. Ct. Rule 603 (1998). A party may petition for leave to appeal a decision by the Appellate Court to the Illinois Supreme Court (with exceptions that are irrelevant here), but whether "such a petition will be granted is a matter of sound judicial discretion." Rule 315(a). See also Rule 612(b) (providing that Rule 315 governs criminal, as well as civil, appeals). Rule 315 elaborates on the exercise of this discretion as follows: "The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court's supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed." Rule 315(a). Boerckel's amended federal habeas petition raised three claims that he had not included in his petition for leave to appeal to the Illinois Supreme Court. To determine whether Boerckel was required to present those claims to the Illinois Supreme Court in order to exhaust his state *844 remedies, we turn first to the language of the federal habeas statute. Section 2254(c) provides that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . .. if he has the right under the law of the State to raise, by any available procedure, the question presented." Although this language could be read to effectively foreclose habeas review by requiring a state prisoner to invoke any possible avenue of state court review, we have never interpreted the exhaustion requirement in such a restrictive fashion. See Wilwording v. Swenson, 404 U.S. 249, 249-250 (1971) (per curiam). Thus, we have not interpreted the exhaustion doctrine to require prisoners to file repetitive petitions. See Brown v. Allen, 344 U.S. 443, 447 (1953) (holding that a prisoner does not have "to ask the state for collateral relief, based on the same evidence and issues already decided by direct review"). We have also held that state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past. See Wilwording v. Swenson, supra, at 249-250 (rejecting suggestion that state prisoner should have invoked "any of a number of possible alternatives to state habeas including `a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts,' or perhaps other relief under the State Administrative Procedure Act"). Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims. See Castille v. Peoples, supra, at 351; Picard v. Connor, 404 U.S. 270, 275-276 (1971). State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. Rose v. Lundy, 455 U.S. 509, 515-516 (1982); Darr v. Burford, 339 U.S. 200, 204 (1950). *845 This rule of comity reduces friction between the state and federal court systems by avoiding the "unseem[liness]" of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance. Ibid. See also Duckworth v. Serrano, 454 U.S. 1, 3-4 (1981) (per curiam); Rose v. Lundy, supra, at 515-516. Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process. Here, Illinois' established, normal appellate review procedure is a twotiered system. Comity, in these circumstances, dictates that Boerckel use the State's established appellate review procedures before he presents his claims to a federal court. Unlike the extraordinary procedures that we found unnecessary in Brown v. Allen and Wilwording v. Swenson, a petition for discretionary review in Illinois' Supreme Court is a normal, simple, and established part of the State's appellate review process. In the words of the statute, state prisoners have "the right . . . to raise" their claims through a petition for discretionary review in the State's highest court. § 2254(c). Granted, as Boerckel contends, Brief for Respondent 16, he has no right to review in the Illinois Supreme Court, but he does have a "right . . . to raise" his claims before that court. That is all § 2254(c) requires. Boerckel contests this conclusion with two related arguments. His first argument is grounded in a stylized portrait of the Illinois appellate review process. According to Boerckel, Illinois' appellate review procedures make the intermediate appellate courts the primary focus of the system; all routine claims of error are directed to those courts. The Illinois Supreme Court, by contrast, serves only to answer *846 "questions of broad significance." Id., at 4. Boerckel's view of Illinois' appellate review process derives from Ill. Sup. Ct. Rule 315(a) (1998). He reads this Rule to discourage the filing of petitions raising routine allegations of error and to direct litigants to present only those claims that meet the criteria defined by the Rule. Rule 315(a), by its own terms, however, does not "contro[l]" or "measur[e]" the Illinois Supreme Court's discretion. The Illinois Supreme Court is free to take cases that do not fall easily within the descriptions listed in the Rule. Moreover, even if we were to assume that the Rule discourages the filing of certain petitions, it is difficult to discern which cases fall into the "discouraged" category. In this case, for example, the parties disagree about whether, under the terms of Rule 315(a), Boerckel's claims should have been presented to the Illinois Supreme Court. Compare Brief for Respondent 5 with Reply Brief for Petitioner 5. The better reading of Rule 315(a) is that the Illinois Supreme Court has the opportunity to decide which cases it will consider on the merits. The fact that Illinois has adopted a discretionary review system may reflect little more than that there are resource constraints on the Illinois Supreme Court's ability to hear every case that is presented to it. It may be that, given the necessity of a discretionary review system, the Rule allows the Illinois Supreme Court to expend its limited resources on "questions of broad significance." We cannot conclude from this Rule, however, that review in the Illinois Supreme Court is unavailable. By requiring state prisoners to give the Illinois Supreme Court the opportunity to resolve constitutional errors in the first instance, the rule we announce today serves the comity interests that drive the exhaustion doctrine. Boerckel's second argument is related to his first. According to Boerckel, because the Illinois Supreme Court has announced (through Rule 315(a)) that it does not want to hear routine allegations of error, a rule requiring state prisoners *847 to file petitions for review with that court offends comity by inundating the Illinois Supreme Court with countless unwanted petitions. Brief for Respondent 8-14. See also 135 F.3d, at 1201. This point, of course, turns on Boerckel's interpretation of Rule 315(a), an interpretation that, as discussed above, we do not find persuasive. Nor is it clear that the rule we announce today will have the effect that Boerckel predicts. We do not know, for example, what percentage of Illinois state prisoners who eventually seek federal habeas relief decline, in the first instance, to seek review in the Illinois Supreme Court. We acknowledge that the rule we announce today — requiring state prisoners to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State — has the potential to increase the number of filings in state supreme courts. We also recognize that this increased burden may be unwelcome in some state courts because the courts do not wish to have the opportunity to review constitutional claims before those claims are presented to a federal habeas court. See, e. g., In re Exhaustion of State Remedies in Criminal and PostConviction Relief Cases, 321 S. C. 563, 471 S.E.2d 454 (1990); see also State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989). Under these circumstances, Boerckel may be correct that the increased, unwelcome burden on state supreme courts disserves the comity interests underlying the exhaustion doctrine. In this regard, we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has "the right under the law of the State to raise, by any available procedure, the question presented." (Emphasis added.) The exhaustion doctrine, in other words, turns on an inquiry into what procedures are "available" under state law. In sum, there is nothing in the exhaustion doctrine requiring federal courts *848 to ignore a state law or rule providing that a given procedure is not available. We hold today only that the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable. Boerckel's amended federal habeas petition raised three claims that he had pressed before the Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the Illinois Supreme Court. There is no dispute that this state court remedy — a petition for leave to appeal to the Illinois Supreme Court — is no longer available to Boerckel; the time for filing such a petition has long passed. See Ill. Sup. Ct. Rule 315(b). Thus, Boerckel's failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims. See Coleman v. Thompson, 501 U. S., at 731-732; Engle v. Isaac, 456 U.S. 107, 125 — 126, n. 28 (1982). We do not disagree with Justice Stevens' general description of the law of exhaustion and procedural default. Specifically, we do not disagree with his description of the interplay of these two doctrines. Post, at 853-854 (dissenting opinion). As Justice Stevens notes, a prisoner could evade the exhaustion requirement — and thereby undercut the values that it serves — by "letting the time run" on state remedies. Post, at 853. To avoid this result, and thus "protect the integrity" of the federal exhaustion rule, ibid., we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i. e., whether he has fairly presented his claims to the state courts, see post, at 854. Our disagreement with Justice Stevens in this case turns on our differing answers to this last question: Whether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts. Because we answer this question "no," we conclude that Boerckel has procedurally defaulted his claims. *849 Accordingly, the judgment of the Court of Appeals for the Seventh Circuit is reversed. It is so ordered.

Federal habeas relief is available to state prisoners only after they have exhausted their claims in state court. 28 U.S. C. 2254(b)(1), (c) ( ed. and Supp. III). In this case, we are asked to decide whether a state prisoner must present his claims to a state supreme court in a petition for *840 discretionary review in order to satisfy the exhaustion requirement. We conclude that he must. I In 1977, respondent Darren Boerckel was tried in the Circuit Court of Montgomery County, Illinois, for the rape, burglary, and aggravated battery of an 87-year-old woman. The central evidence against him at trial was his written confession to the crimes, a confession admitted over Boerckel's objection. The jury convicted Boerckel on all three charges, and he was sentenced to serve 20 to 60 years' imprisonment on the rape charge, and shorter terms on the other two charges, with all sentences to be served concurrently. Boerckel appealed his convictions to the Appellate Court of Illinois, raising several issues. He argued, among other things, that his confession should have been suppressed because the confession was the fruit of an illegal arrest, because the confession was coerced, and because he had not knowingly and intelligently waived his rights under Boerckel claimed that prosecutorial misconduct denied him a fair trial, that he had been denied discovery of exculpatory material held by the police, and that the evidence was insufficient to support his conviction. The Illinois Appellate Court, with one justice dissenting, rejected Boerckel's claims and affirmed his convictions and sentences. Boerckel next filed a petition for leave to appeal to the Illinois Supreme Court. In this petition, he raised only three issues. Boerckel claimed first that his confession was the fruit of an unlawful arrest because, contrary to the Appellate Court's ruling, he was under arrest when he gave his confession. Boerckel contended that he was denied a fair trial by prosecutorial misconduct and that he had been erroneously denied discovery of exculpatory material *841 in the possession of the police. The Illinois Supreme Court denied the petition for leave to appeal, and this Court denied Boerckel's subsequent petition for a writ of certiorari. In Boerckel filed a pro se petition for a writ of habeas corpus under 28 U.S. C. 2254 in the United States District Court for the Central District of Illinois. The District Court appointed counsel for Boerckel, and Boerckel's counsel filed an amended petition in March 1995. The amended petition asked for relief on six grounds: (1) that Boerckel had not knowingly and intelligently waived his Miranda rights; (2) that his confession was not voluntary; (3) that the evidence against him was insufficient to sustain the conviction; (4) that his confession was the fruit of an illegal arrest; (5) that he received ineffective assistance of counsel at trial and on appeal; and (6) that his right to discovery of exculpatory material under was violated. In an order dated November 15, 1995, the District Court found, as relevant here, that Boerckel had procedurally defaulted his first, second, and third claims by failing to include them in his petition for leave to appeal to the Illinois Supreme Court. No. 94-3258 (CD Ill.), pp. 4-10. Boerckel attempted to overcome the procedural defaults by presenting evidence that he fell within the "fundamental miscarriage of justice" exception to the procedural default rule. See At a hearing on this issue, Boerckel argued that he was actually innocent of the offenses for which he had been convicted and he presented evidence that he claimed showed that two other men were responsible for the crimes. In a subsequent ruling, the District Court concluded that Boerckel had failed to satisfy the standards established in for establishing the "fundamental miscarriage of justice" exception, and thus held that Boerckel could not overcome the procedural bars preventing review *842 of his claims. No. 94-3258 (CD Ill., Oct. 28, 1996), pp. 14-15. After rejecting Boerckel's remaining claims for relief, the District Court denied his habeas petition. On appeal, the Court of Appeals for the Seventh Circuit considered one question, namely, whether Boerckel had procedurally defaulted the first three claims in his habeas petition (whether he knowingly and intelligently waived his Miranda rights, whether his confession was voluntary, and whether the evidence was sufficient to support a verdict) by failing to raise those claims in his petition for leave to appeal to the Illinois Supreme Court. The Court of Appeals reversed the judgment of the District Court denying Boerckel's habeas petition and remanded for further proceedings. The court concluded that Boerckel was not required to present his claims in a petition for discretionary review to the Illinois Supreme Court to satisfy the exhaustion requirement. Thus, according to the Court of Appeals, Boerckel had not procedurally defaulted those claims. We granted certiorari to resolve a conflict in the Courts of Appeals on this issue. Compare e. g., with cert. denied, II Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion doctrine, first announced in Ex parte Royall, is now codified at 28 U.S. C. 2254(b)(1) ( ed., Supp. III). This doctrine, however, raises a recurring question: What state remedies must a habeas petitioner *843 invoke to satisfy the federal exhaustion requirement? See ; The particular question posed by this case is whether a prisoner must seek review in a state court of last resort when that court has discretionary control over its docket. Illinois law provides for a two-tiered appellate review process. Criminal defendants are tried in the local circuit courts, and although some criminal appeals (e. g., those in which the death penalty is imposed) are heard directly by the Supreme Court of Illinois, most criminal appeals are heard first by an intermediate appellate court, the Appellate Court of Illinois. Ill. Sup. Ct. Rule 603 A party may petition for leave to appeal a decision by the Appellate Court to the Illinois Supreme Court (with exceptions that are irrelevant here), but whether "such a petition will be granted is a matter of sound judicial discretion." Rule 315(a). See Rule 612(b) (providing that Rule 315 governs criminal, as well as civil, appeals). Rule 315 elaborates on the exercise of this discretion as follows: "The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court's supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed." Rule 315(a). Boerckel's amended federal habeas petition raised three claims that he had not included in his petition for leave to appeal to the Illinois Supreme Court. To determine whether Boerckel was required to present those claims to the Illinois Supreme Court in order to exhaust his state *844 remedies, we turn first to the language of the federal habeas statute. Section 2254(c) provides that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State if he has the right under the law of the State to raise, by any available procedure, the question presented." Although this language could be read to effectively foreclose habeas review by requiring a state prisoner to invoke any possible avenue of state court review, we have never interpreted the exhaustion requirement in such a restrictive fashion. See Thus, we have not interpreted the exhaustion doctrine to require prisoners to file repetitive petitions. See We have held that state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past. See at (rejecting suggestion that state prisoner should have invoked "any of a number of possible alternatives to state habeas including `a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts,' or perhaps other relief under the State Administrative Procedure Act"). Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims. See ; State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. ; *845 This rule of comity reduces friction between the state and federal court systems by avoiding the "unseem[liness]" of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance. See ; at Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process. Here, Illinois' established, normal appellate review procedure is a twotiered system. Comity, in these circumstances, dictates that Boerckel use the State's established appellate review procedures before he presents his claims to a federal court. Unlike the extraordinary procedures that we found unnecessary in and a petition for discretionary review in Illinois' Supreme Court is a normal, simple, and established part of the State's appellate review process. In the words of the statute, state prisoners have "the right to raise" their claims through a petition for discretionary review in the State's highest court. 2254(c). Granted, as Boerckel contends, Brief for Respondent 16, he has no right to review in the Illinois Supreme Court, but he does have a "right to raise" his claims before that court. That is all 2254(c) requires. Boerckel contests this conclusion with two related arguments. His first argument is grounded in a stylized portrait of the Illinois appellate review process. According to Boerckel, Illinois' appellate review procedures make the intermediate appellate courts the primary focus of the system; all routine claims of error are directed to those courts. The Illinois Supreme Court, by contrast, serves only to answer *846 "questions of broad significance." Boerckel's view of Illinois' appellate review process derives from Ill. Sup. Ct. Rule 315(a) He reads this Rule to discourage the filing of petitions raising routine allegations of error and to direct litigants to present only those claims that meet the criteria defined by the Rule. Rule 315(a), by its own terms, however, does not "contro[l]" or "measur[e]" the Illinois Supreme Court's discretion. The Illinois Supreme Court is free to take cases that do not fall easily within the descriptions listed in the Rule. Moreover, even if we were to assume that the Rule discourages the filing of certain petitions, it is difficult to discern which cases fall into the "discouraged" category. In this case, for example, the parties disagree about whether, under the terms of Rule 315(a), Boerckel's claims should have been presented to the Illinois Supreme Court. Compare Brief for Respondent 5 with Reply Brief for Petitioner 5. The better reading of Rule 315(a) is that the Illinois Supreme Court has the opportunity to decide which cases it will consider on the merits. The fact that Illinois has adopted a discretionary review system may reflect little more than that there are resource constraints on the Illinois Supreme Court's ability to hear every case that is presented to it. It may be that, given the necessity of a discretionary review system, the Rule allows the Illinois Supreme Court to expend its limited resources on "questions of broad significance." We cannot conclude from this Rule, however, that review in the Illinois Supreme Court is unavailable. By requiring state prisoners to give the Illinois Supreme Court the opportunity to resolve constitutional errors in the first instance, the rule we announce today serves the comity interests that drive the exhaustion doctrine. Boerckel's second argument is related to his first. According to Boerckel, because the Illinois Supreme Court has announced (through Rule 315(a)) that it does not want to hear routine allegations of error, a rule requiring state prisoners *847 to file petitions for review with that court offends comity by inundating the Illinois Supreme Court with countless unwanted petitions. Brief for Respondent 8-14. See This point, of course, turns on Boerckel's interpretation of Rule 315(a), an interpretation that, as discussed above, we do not find persuasive. Nor is it clear that the rule we announce today will have the effect that Boerckel predicts. We do not know, for example, what percentage of Illinois state prisoners who eventually seek federal habeas relief decline, in the first instance, to seek review in the Illinois Supreme Court. We acknowledge that the rule we announce today — requiring state prisoners to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State — has the potential to increase the number of filings in state supreme courts. We recognize that this increased burden may be unwelcome in some state courts because the courts do not wish to have the opportunity to review constitutional claims before those claims are presented to a federal habeas court. See, e. g., In re Exhaustion of State Remedies in Criminal and PostConviction Relief Cases, 321 S. C. 563, ; see Under these circumstances, Boerckel may be correct that the increased, unwelcome burden on state supreme courts disserves the comity interests underlying the exhaustion doctrine. In this regard, we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has "the right under the law of the State to raise, by any available procedure, the question presented." (Emphasis added.) The exhaustion doctrine, in other words, turns on an inquiry into what procedures are "available" under state law. In sum, there is nothing in the exhaustion doctrine requiring federal courts *848 to ignore a state law or rule providing that a given procedure is not available. We hold today only that the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable. Boerckel's amended federal habeas petition raised three claims that he had pressed before the Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the Illinois Supreme Court. There is no dispute that this state court remedy — a petition for leave to appeal to the Illinois Supreme Court — is no longer available to Boerckel; the time for filing such a petition has long passed. See Ill. Sup. Ct. Rule 315(b). Thus, Boerckel's failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims. See We do not disagree with Justice Stevens' general description of the law of exhaustion and procedural default. Specifically, we do not disagree with his description of the interplay of these two doctrines. Post, at 853-854 (dissenting opinion). As Justice Stevens notes, a prisoner could evade the exhaustion requirement — and thereby undercut the values that it serves — by "letting the time run" on state remedies. Post, at 853. To avoid this result, and thus "protect the integrity" of the federal exhaustion rule, ibid., we ask not only whether a prisoner has exhausted his state remedies, but whether he has properly exhausted those remedies, i. e., whether he has fairly presented his claims to the state courts, see post, at 854. Our disagreement with Justice Stevens in this case turns on our differing answers to this last question: Whether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts. Because we answer this question "no," we conclude that Boerckel has procedurally defaulted his claims. *849 Accordingly, the judgment of the Court of Appeals for the Seventh Circuit is reversed. It is so ordered.

Justice Powell

majority

Morris v. Gressette

https://www.courtlistener.com/opinion/109711/morris-v-gressette/

https://www.courtlistener.com/api/rest/v3/clusters/109711/

1976-156

The issue in this case concerns the scope of judicial review of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act of 1965 to a change in the voting laws of a jurisdiction subject to that Act. I The events leading up to this litigation date back to November 11, 1971, when South Carolina enacted Act 932 reapportioning the State Senate.[1] South Carolina promptly submitted Act 932 to the Attorney General of the United States for preclearance review pursuant to § 5 of the Voting *494 Rights Act. 79 Stat. 439, as amended, 42 U.S. C. § 1973c (1970 ed., Supp. V).[2] That section forbids States subject to the Act to implement any change in "any voting qualification *495 or prerequisite to voting, or standard, practice, or procedure with respect to voting" without first (i) obtaining a declaratory judgment from the District Court for the District of Columbia that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color," or (ii) submitting the change to the Attorney General and receiving no objection within 60 days.[3] While the Attorney General had Act 932 under review, several suits were filed in the United States District Court for the District of South Carolina challenging that Act as violative of the Fourteenth and Fifteenth Amendments and seeking to enjoin its enforcement until preclearance had been obtained under § 5. The cases were consolidated and a three-judge District Court was convened. On March 6, 1972, the Attorney General interposed an objection to Act 932.[4] Although the South Carolina District Court was aware of this objection—an objection that, standing *496 alone, would have justified an injunction against enforcement of the Act—the court proceeded to address the constitutional validity of the reapportionment plan.[5] That court rejected the Fifteenth Amendment claim for lack of evidence that Act 932 was racially motivated, but held that the Act violated the Fourteenth Amendment due to malapportionment. The court retained jurisdiction and allowed South Carolina 30 days to enact an acceptable substitute reapportionment plan. Twiggs v. West, Civ. No. 71-1106 (SC, Apr. 7, 1972). On May 6, 1972, a new senate reapportionment plan was enacted into law as § 2 of Act 1205.[6] This new plan was filed with the District Court, and it was submitted to the Attorney General on May 12 for preclearance review. On May 23 the District Court found the plan constitutional.[7] By letter dated *497 June 30, the Attorney General notified South Carolina that he would not interpose an objection to the new plan because he felt "constrained to defer to the . . . determination of the three-judge District Court" in Twiggs v. West, supra.[8] App. 48. Thus, as of June 30, 1972, § 2 of Act 1205 had been declared constitutional by a three-judge District Court, and the Attorney General had declined to interpose an objection under § 5 of the Voting Rights Act.[9] Not content with the Attorney General's decision to defer to the judicial determination of the three-judge District Court, several of the named plaintiffs in the consolidated Twiggs action commenced another suit in the United States District Court for the District of Columbia on August 10, 1972, in which they challenged the Attorney General's failure to object to the new senate reapportionment plan. On May 16, 1973, that court ordered the Attorney General to make "a reasoned decision in accordance with his statutory responsibility." Harper v. Kleindienst, 362 F. Supp. 742, 746 (1973). In *498 response to this order, the Attorney General stated that in his view the plan violated the Fifteenth Amendment, but he reaffirmed his refusal to interpose an objection on the ground that he was constrained to defer to the ruling of the District Court in Twiggs v. West. App. to Brief for Appellants 4a. On July 19, 1973, the District of Columbia District Court directed the Attorney General to consider Act 1205 without regard to the decision in Twiggs v. West. The next day the Attorney General interposed an objection because he was "unable to conclude that Act No. 1205 does not have the effect of abridging voting rights on account of race." App. 52. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed. It held that the Attorney General's decision not to interpose an objection was reviewable under the circumstances of this case,[10] and that § 5 requires him to make an independent determination on the merits of § 5 issues. Harper v. Levi, 171 U. S. App. D. C. 321, 520 F.2d 53 (1975). Armed with the decision of the Court of Appeals and the belated objection interposed by the Attorney General, two South Carolina voters filed the present suit in the United States District Court for the District of South Carolina as a class action under § 5 of the Voting Rights Act. See Allen v. State Bd. of Elections, 393 U.S. 544, 557-563 (1969). The plaintiffs, appellants here, sought an injunction against implementation of § 2 of Act 1205 on the ground that the Attorney General had interposed an objection and the State had not *499 subsequently obtained a favorable declaratory judgment from the United States District Court for the District of Columbia. The three-judge District Court convened under § 5 dismissed the complaint. 425 F. Supp. 331 (1976). It held that the doctrine of collateral estoppel did not preclude it from considering South Carolina's contention that, notwithstanding the decision in Harper v. Levi, supra, the requirements of § 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission to him of Act 1205.[11] The District Court also ruled that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling of the three-judge District Court in Twiggs v. West. In light of these considerations, the District Court concluded that the failure of the Attorney General to interpose an objection within the applicable 60-day period left South Carolina free to implement the new senate reapportionment plan. We noted probable jurisdiction to determine the reviewability of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act. 429 U.S. 997 (1976). For the reasons stated below, we affirm. II The ultimate issue in this case concerns the implementation of South Carolina's reapportionment plan for the State Senate. Since that plan has not been declared by the District Court for the District of Columbia to be without racially discriminatory purpose or effect, it can be implemented only if the Attorney General "has not interposed an objection" to the plan within the meaning of § 5 of the Voting Rights Act.[12] It *500 is conceded that no objection was entered within the 60-day period. 425 F. Supp., at 333. But appellants insist that the Attorney General's nunc pro tunc objection of July 20, 1973, is effective under the Act and thus bars implementation of the reapportionment plan. Since that objection was interposed pursuant to the District Court's order in Harper v. Kleindienst, its validity depends on whether the Harper court had jurisdiction under the Administrative Procedure Act to review the Attorney General's failure to object.[13] The Administrative Procedure Act stipulates that the provisions of that Act authorizing judicial review apply "except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." *501 5 U.S. C. § 701 (a).[14] It is now well settled that "judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).[15] The reviewing court must determine whether "Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion." Barlow v. Collins, 397 U.S. 159, 165 (1970). As no provision of the Voting Rights Act expressly precludes judicial review of the Attorney General's action under § 5, it is necessary to determine "whether nonreviewability can fairly be inferred." 397 U.S., at 166. See Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 157 (1970); Switchmen v. National Mediation Board, 320 U.S. 297 (1943). That inquiry must address the role played by the Attorney General within "the context of the entire legislative scheme." Abbott Laboratories v. Gardner, supra, at 141. The nature of the § 5 remedy, which this Court has characterized as an "unusual" and "severe" procedure, Allen v. State Bd. of Elections, 393 U.S. 544, 556 (1969), strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that *502 legislation conforms to the Constitution and to the provisions of the Voting Rights Act. See South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966). Section 5 establishes two alternative methods by which covered jurisdictions can comply with this severe requirement of federal preclearance review. First, a covered jurisdiction may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement the change in voting laws if that court declares that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S. C. § 1973c (1970 ed., Supp. V). Second, a covered jurisdiction may submit a change in voting laws to the Attorney General and subsequently may enforce the change if "the Attorney General has not interposed an objection within sixty days after such submission." Ibid. According to the terms of § 5, a covered jurisdiction is in compliance pursuant to the latter alternative once it has (i) filed a complete submission with the Attorney General, and (ii) received no objection from that office within 60 days. This second method of compliance under § 5 is unlike the first in that implementation of changes in voting laws is not conditioned on an affirmative statement by the Attorney General that the change is without discriminatory purpose or effect.[16] To the contrary, compliance with § 5 is measured solely by the absence, for whatever reason, of a timely objection on the part of the Attorney General.[17] And this Court *503 has recognized that "[o]nce the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5." Allen v. State Bd. of Elections, supra, at 549-550. Although there is no legislative history bearing directly on the issue of reviewability of the Attorney General's actions under § 5, the legislative materials do indicate a desire to provide a speedy alternative method of compliance to covered States. Section 8 of the original bill provided for preclearance review only by means of a declaratory judgment action in the District Court for the District of Columbia. Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965) (hereafter Senate Hearings). Justified concerns arose that the time required to pursue such litigation would unduly delay the implementation of validly enacted, nondiscriminatory state legislation. Cognizant of the problem, Attorney General Katzenbach suggested that the declaratory judgment procedure "could be improved by applying it only to those laws which the Attorney General takes exception to within a given period of time." Senate Hearings 237. The legislation was changed to incorporate this suggestion.[18] *504 In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, we think it clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions. The congressional intent is plain: The extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission.[19] Although there was to be no bar to subsequent constitutional challenges to the implemented legislation, there also was to be "no dragging out" of the extraordinary federal remedy beyond the period specified in the statute. Switchmen v. National Mediation Board, 320 U. S., at 305. Since judicial review of the Attorney General's *505 actions would unavoidably extend this period, it is necessarily precluded.[20] Our conclusions in this respect are reinforced by the fact that the Attorney General's failure to object is not conclusive with respect to the constitutionality of the submitted state legislation.[21] The statute expressly provides that neither "an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object . . . shall bar a subsequent action to enjoin enforcement" of the newly enacted legislation or voting regulation. Cf. Dunlop v. Bachowski, 421 U.S. 560, 569-570 (1975). It is true that it was the perceived inadequacy of private suits under the Fifteenth Amendment that prompted Congress to pass the Voting Rights Act. Allen v. State Bd. of Elections, 393 U. S., at 556 n. 21; South Carolina v. Katzenbach, *506 383 U. S., at 309. But it does not follow that Congress did not intend to preclude judicial review of Attorney General actions under § 5.[22] The initial alternative requirement of submission to the Attorney General substantially reduces the likelihood that a discriminatory enactment will escape detection by federal authorities.[23] Where the discriminatory character *507 of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation. But it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under § 5, or his failure to object within the statutory period.[24] III For these reasons, we hold that the objection interposed by the Attorney General to § 2 of Act 1205 on July 20, 1973, nunc pro tunc, is invalid.[25] South Carolina is therefore free to implement its reapportionment plan for the State Senate. Affirmed. MR. JUSTICE MARSHALL, with whom MR.

The issue in this case concerns the scope of judicial review of the Attorney General's failure to interpose a timely objection under 5 of the Voting Rights Act of 1965 to a change in the voting laws of a jurisdiction subject to that Act. I The events leading up to this litigation date back to November 11, 1971, when South Carolina enacted Act 932 reapportioning the State Senate.[1] South Carolina promptly submitted Act 932 to the Attorney General of the United States for preclearance review pursuant to 5 of the Voting *494 Rights Act. as amended, 42 U.S. C. c (1970 ed., Supp. V).[2] That section forbids States subject to the Act to implement any change in "any voting qualification *495 or prerequisite to voting, or standard, practice, or procedure with respect to voting" without first (i) obtaining a declaratory judgment from the District Court for the District of Columbia that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color," or (ii) submitting the change to the Attorney General and receiving no objection within 60 days.[3] While the Attorney General had Act 932 under review, several suits were filed in the United States District Court for the District of South Carolina challenging that Act as violative of the Fourteenth and Fifteenth Amendments and seeking to enjoin its enforcement until preclearance had been obtained under 5. The cases were consolidated and a three-judge District Court was convened. On March 6, 1972, the Attorney General interposed an objection to Act 932.[4] Although the South Carolina District Court was aware of this objection—an objection that, standing *496 alone, would have justified an injunction against enforcement of the Act—the court proceeded to address the constitutional validity of the reapportionment plan.[5] That court rejected the Fifteenth Amendment claim for lack of evidence that Act 932 was racially motivated, but held that the Act violated the Fourteenth Amendment due to malapportionment. The court retained jurisdiction and allowed South Carolina 30 days to enact an acceptable substitute reapportionment plan. Twiggs v. West, Civ. No. 71-1106 (SC, Apr. 7, 1972). On May 6, 1972, a new senate reapportionment plan was enacted into law as 2 of Act 1205.[6] This new plan was filed with the District Court, and it was submitted to the Attorney General on May 12 for preclearance review. On May 23 the District Court found the plan constitutional.[7] By letter dated *497 June 30, the Attorney General notified South Carolina that he would not interpose an objection to the new plan because he felt "constrained to defer to the determination of the three-judge District Court" in Twiggs v. West, supra.[8] App. 48. Thus, as of June 30, 1972, 2 of Act 1205 had been declared constitutional by a three-judge District Court, and the Attorney General had declined to interpose an objection under 5 of the Voting Rights Act.[9] Not content with the Attorney General's decision to defer to the judicial determination of the three-judge District Court, several of the named plaintiffs in the consolidated Twiggs action commenced another suit in the United States District Court for the District of Columbia on August 10, 1972, in which they challenged the Attorney General's failure to object to the new senate reapportionment plan. On May 16, that court ordered the Attorney General to make "a reasoned decision in accordance with his statutory responsibility." In *498 response to this order, the Attorney General stated that in his view the plan violated the Fifteenth Amendment, but he reaffirmed his refusal to interpose an objection on the ground that he was constrained to defer to the ruling of the District Court in Twiggs v. West. App. to Brief for Appellants 4a. On July 19, the District of Columbia District Court directed the Attorney General to consider Act 1205 without regard to the decision in Twiggs v. West. The next day the Attorney General interposed an objection because he was "unable to conclude that Act No. 1205 does not have the effect of abridging voting rights on account of race." App. 52. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed. It held that the Attorney General's decision not to interpose an objection was reviewable under the circumstances of this case,[10] and that 5 requires him to make an independent determination on the merits of 5 issues. Armed with the decision of the Court of Appeals and the belated objection interposed by the Attorney General, two South Carolina voters filed the present suit in the United States District Court for the District of South Carolina as a class action under 5 of the Voting Rights Act. See The plaintiffs, appellants here, sought an injunction against implementation of 2 of Act 1205 on the ground that the Attorney General had interposed an objection and the State had not *499 subsequently obtained a favorable declaratory judgment from the United States District Court for the District of Columbia. The three-judge District Court convened under 5 dismissed the complaint. It held that the doctrine of collateral estoppel did not preclude it from considering South Carolina's contention that, notwithstanding the decision in Harper v. the requirements of 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission to him of Act 1205.[11] The District Court also ruled that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling of the three-judge District Court in Twiggs v. West. In light of these considerations, the District Court concluded that the failure of the Attorney General to interpose an objection within the applicable 60-day period left South Carolina free to implement the new senate reapportionment plan. We noted probable jurisdiction to determine the reviewability of the Attorney General's failure to interpose a timely objection under 5 of the Voting Rights Act. For the reasons stated below, we affirm. II The ultimate issue in this case concerns the implementation of South Carolina's reapportionment plan for the State Senate. Since that plan has not been declared by the District Court for the District of Columbia to be without racially discriminatory purpose or effect, it can be implemented only if the Attorney General "has not interposed an objection" to the plan within the meaning of 5 of the Voting Rights Act.[12] It *500 is conceded that no objection was entered within the 60-day But appellants insist that the Attorney General's nunc pro tunc objection of July 20, is effective under the Act and thus bars implementation of the reapportionment plan. Since that objection was interposed pursuant to the District Court's order in its validity depends on whether the Harper court had jurisdiction under the Administrative Procedure Act to review the Attorney General's failure to object.[13] The Administrative Procedure Act stipulates that the provisions of that Act authorizing judicial review apply "except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." *501 5 U.S. C. 701 (a).[14] It is now well settled that "judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott[15] The reviewing court must determine whether "Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion." As no provision of the Voting Rights Act expressly precludes judicial review of the Attorney General's action under 5, it is necessary to determine "whether nonreviewability can fairly be inferred." See Association of Data Processing Service ; That inquiry must address the role played by the Attorney General within "the context of the entire legislative scheme." Abbott The nature of the 5 remedy, which this Court has characterized as an "unusual" and "severe" procedure, strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that *502 legislation conforms to the Constitution and to the provisions of the Voting Rights Act. See South Section 5 establishes two alternative methods by which covered jurisdictions can comply with this severe requirement of federal preclearance review. First, a covered jurisdiction may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement the change in voting laws if that court declares that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S. C. c (1970 ed., Supp. V). Second, a covered jurisdiction may submit a change in voting laws to the Attorney General and subsequently may enforce the change if "the Attorney General has not interposed an objection within sixty days after such submission." According to the terms of 5, a covered jurisdiction is in compliance pursuant to the latter alternative once it has (i) filed a complete submission with the Attorney General, and (ii) received no objection from that office within 60 days. This second method of compliance under 5 is unlike the first in that implementation of changes in voting laws is not conditioned on an affirmative statement by the Attorney General that the change is without discriminatory purpose or effect.[16] To the contrary, compliance with 5 is measured solely by the absence, for whatever reason, of a timely objection on the part of the Attorney General.[17] And this Court *503 has recognized that "[o]nce the State has successfully complied with the 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by 5." Although there is no legislative history bearing directly on the issue of reviewability of the Attorney General's actions under 5, the legislative materials do indicate a desire to provide a speedy alternative method of compliance to covered States. Section 8 of the original bill provided for preclearance review only by means of a declaratory judgment action in the District Court for the District of Columbia. Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965) (hereafter Senate Hearings). Justified concerns arose that the time required to pursue such litigation would unduly delay the implementation of validly enacted, nondiscriminatory state legislation. Cognizant of the problem, Attorney General Katzenbach suggested that the declaratory judgment procedure "could be improved by applying it only to those laws which the Attorney General takes exception to within a given period of time." Senate Hearings 237. The legislation was changed to incorporate this suggestion.[18] *504 In light of the potential severity of the 5 remedy, the statutory language, and the legislative history, we think it clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions. The congressional intent is plain: The extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission.[19] Although there was to be no bar to subsequent constitutional challenges to the implemented legislation, there also was to be "no dragging out" of the extraordinary federal remedy beyond the period specified in the statute. Since judicial review of the Attorney General's *505 actions would unavoidably extend this period, it is necessarily precluded.[20] Our conclusions in this respect are reinforced by the fact that the Attorney General's failure to object is not conclusive with respect to the constitutionality of the submitted state legislation.[21] The statute expressly provides that neither "an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object shall bar a subsequent action to enjoin enforcement" of the newly enacted legislation or voting regulation. Cf. It is true that it was the perceived inadequacy of private suits under the Fifteenth Amendment that prompted Congress to pass the Voting Rights Act. 393 U. S., at n. 21; South * But it does not follow that Congress did not intend to preclude judicial review of Attorney General actions under 5.[22] The initial alternative requirement of submission to the Attorney General substantially reduces the likelihood that a discriminatory enactment will escape detection by federal authorities.[23] Where the discriminatory character *507 of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation. But it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under 5, or his failure to object within the statutory [24] III For these reasons, we hold that the objection interposed by the Attorney General to 2 of Act 1205 on July 20, nunc pro tunc, is invalid.[25] South Carolina is therefore free to implement its reapportionment plan for the State Senate. Affirmed. MR. JUSTICE MARSHALL, with whom MR.

Justice Black

majority

Younger v. Harris

https://www.courtlistener.com/opinion/108263/younger-v-harris/

https://www.courtlistener.com/api/rest/v3/clusters/108263/

1970-035

Appellee, John Harris, Jr., was indicted in a California state court, charged with violation of the California Penal Code §§ 11400 and 11401, known as the California Criminal Syndicalism Act, set out below.[1] He then filed *39 a complaint in the Federal District Court, asking that court to enjoin the appellant, Younger, the District Attorney of Los Angeles County, from prosecuting him, and alleging that the prosecution and even the presence of the Act inhibited him in the exercise of his rights of free speech and press, rights guaranteed him by the First and Fourteenth Amendments. Appellees Jim Dan and Diane Hirsch intervened as plaintiffs in the suit, claiming that the prosecution of Harris would inhibit them as members of the Progressive Labor Party from peacefully advocating the program of their party, which was to replace capitalism with socialism and to abolish the profit system of production in this country. Appellee Farrell Broslawsky, an instructor in history at Los Angeles Valley College, also intervened claiming that the prosecution of Harris made him uncertain as to whether he could *40 teach about the doctrines of Karl Marx or read from the Communist Manifesto as part of his classwork. All claimed that unless the United States court restrained the state prosecution of Harris each would suffer immediate and irreparable injury. A three-judge Federal District Court, convened pursuant to 28 U.S. C. § 2284, held that it had jurisdiction and power to restrain the District Attorney from prosecuting, held that the State's Criminal Syndicalism Act was void for vagueness and overbreadth in violation of the First and Fourteenth Amendments, and accordingly restrained the District Attorney from "further prosecution of the currently pending action against plaintiff Harris for alleged violation of the Act." 281 F. Supp. 507, 517 (1968). The case is before us on appeal by the State's District Attorney Younger, pursuant to 28 U.S. C. § 1253. In his notice of appeal and his jurisdictional statement appellant presented two questions: (1) whether the decision of this Court in Whitney v. California, 274 U.S. 357, holding California's law constitutional in 1927 was binding on the District Court and (2) whether the State's law is constitutional on its face. In this Court the brief for the State of California, filed at our request, also argues that only Harris, who was indicted, has standing to challenge the State's law, and that issuance of the injunction was a violation of a longstanding judicial policy and of 28 U.S. C. § 2283, which provides: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." See, e. g., Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281, 285-286 (1970). Without regard to the questions *41 raised about Whitney v. California, supra, since overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969), or the constitutionality of the state law, we have concluded that the judgment of the District Court, enjoining appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.[2] We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun. I Appellee Harris has been indicted, and was actually being prosecuted by California for a violation of its Criminal Syndicalism Act at the time this suit was filed. He thus has an acute, live controversy with the State and its prosecutor. But none of the other parties plaintiff in the District Court, Dan, Hirsch, or Broslawsky, has such a controversy. None has been indicted, arrested, or even threatened by the prosecutor. About these three the three-judge court said: "Plaintiffs Dan and Hirsch allege that they are members of the Progressive Labor Party, which advocates change in industrial ownership and political change, and that they feel inhibited in advocating *42 the program of their political party through peaceful, non-violent means, because of the presence of the Act `on the books,' and because of the pending criminal prosecution against Harris. Plaintiff Broslawsky is a history instructor, and he alleges that he is uncertain as to whether his normal practice of teaching his students about the doctrines of Karl Marx and reading from the Communist Manifesto and other revolutionary works may subject him to prosecution for violation of the Act." 281 F. Supp., at 509. Whatever right Harris, who is being prosecuted under the state syndicalism law may have, Dan, Hirsch, and Broslawsky cannot share it with him. If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true—either on the admission of the State's district attorney or on any other evidence— then a genuine controversy might be said to exist. But here appellees Dan, Hirsch, and Broslawsky do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. They claim the right to bring this suit solely because, in the language of their complaint, they "feel inhibited." We do not think this allegation, even if true, is sufficient to bring the equitable jurisdiction of the federal courts into play to enjoin a pending state prosecution. A federal lawsuit to stop a prosecution in a state court is a serious matter. And persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in such cases. See Golden v. Zwickler, 394 U.S. 103 (1969). Since Harris is actually being prosecuted under the challenged laws, however, we proceed with him as a proper party. *43 II Since the beginning of this country's history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts. In 1793 an Act unconditionally provided: "[N]or shall a writ of injunction be granted to stay proceedings in any court of a state . . . ." 1 Stat. 335, c. 22, § 5. A comparison of the 1793 Act with 28 U.S. C. § 2283, its present-day successor, graphically illustrates how few and minor have been the exceptions granted from the flat, prohibitory language of the old Act. During all this lapse of years from 1793 to 1970 the statutory exceptions to the 1793 congressional enactment have been only three: (1) "except as expressly authorized by Act of Congress"; (2) "where necessary in aid of its jurisdiction"; and (3) "to protect or effectuate its judgments." In addition, a judicial exception to the longstanding policy evidenced by the statute has been made where a person about to be prosecuted in a state court can show that he will, if the proceeding in the state court is not enjoined, suffer irreparable damages. See Ex parte Young, 209 U.S. 123 (1908).[3] The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable *44 injury if denied equitable relief. The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution, in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism," and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of "Our Federalism." The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," born in the early struggling days of *45 our Union of States, occupies a highly important place in our Nation's history and its future. This brief discussion should be enough to suggest some of the reasons why it has been perfectly natural for our cases to repeat time and time again that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions. In Fenner v. Boykin, 271 U.S. 240 (1926), suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances: "Ex parte Young, 209 U.S. 123, and following cases have established the doctrine that when absolutely necessary for protection of constitutional rights courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection." Id., at 243-244. These principles, made clear in the Fenner case, have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions. See, e. g., Spielman Motor *46 Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri Pac. R. Co., 312 U.S. 45 (1941); Watson v. Buck, 313 U.S. 387 (1941); Williams v. Miller, 317 U.S. 599 (1942); Douglas v. City of Jeannette, 319 U.S. 157 (1943). In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is "both great and immediate." Fenner, supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered "irreparable" in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e. g., Ex parte Young, supra, at 145-147. Thus, in the Buck case, supra, at 400, we stressed: "Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. `No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.' Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49." *47 And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that: "It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith . . . ." 319 U.S., at 164. This is where the law stood when the Court decided Dombrowski v. Pfister, 380 U.S. 479 (1965), and held that an injunction against the enforcement of certain state criminal statutes could properly issue under the circumstances presented in that case.[4] In Dombrowski, *48 unlike many of the earlier cases denying injunctions, the complaint made substantial allegations that: "the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana." 380 U.S., at 482. The appellants in Dombrowski had offered to prove that their offices had been raided and all their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for lack of probable cause. They also offered to prove that despite the state court order quashing the warrants and suppressing the evidence seized, the prosecutor was continuing to threaten to initiate new prosecutions of appellants under the same statutes, was holding public hearings at which photostatic copies of the illegally seized documents were being used, and was threatening to use other copies of the illegally seized documents to obtain grand jury indictments against the appellants on charges of violating the same statutes. These circumstances, as viewed by the Court sufficiently establish the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention. See, e. g., Beal, supra, at 50. Indeed, after quoting the Court's statement in Douglas concerning the very restricted circumstances under which an injunction could be justified, the Court in Dombrowski went on to say: "But the allegations in this complaint depict a situation in which defense of the State's criminal *49 prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury." 380 U.S., at 485-486. And the Court made clear that even under these circumstances the District Court issuing the injunction would have continuing power to lift it at any time and remit the plaintiffs to the state courts if circumstances warranted. 380 U.S., at 491, 492. Similarly, in Cameron v. Johnson, 390 U.S. 611 (1968), a divided Court denied an injunction after finding that the record did not establish the necessary bad faith and harassment; the dissenting Justices themselves stressed the very limited role to be allowed for federal injunctions against state criminal prosecutions and differed with the Court only on the question whether the particular facts of that case were sufficient to show that the prosecution was brought in bad faith. It is against the background of these principles that we must judge the propriety of an injunction under the circumstances of the present case. Here a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional claims. There is no suggestion that this single prosecution against Harris is brought in bad faith or is only one of a series of repeated prosecutions to which he will be subjected. In other words, the injury that Harris faces is solely "that incidental to every criminal proceeding brought lawfully and in good faith," Douglas, supra, and therefore under the settled doctrine we have already described he is not entitled to equitable relief "even if such statutes are unconstitutional," Buck, supra. *50 The District Court, however, thought that the Dombrowski decision substantially broadened the availability of injunctions against state criminal prosecutions and that under that decision the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a state statute is found "on its face" to be vague or overly broad, in violation of the First Amendment. We recognize that there are some statements in the Dombrowski opinion that would seem to support this argument. But, as we have already seen, such statements were unnecessary to the decision of that case, because the Court found that the plaintiffs had alleged a basis for equitable relief under the long-established standards. In addition, we do not regard the reasons adduced to support this position as sufficient to justify such a substantial departure from the established doctrines regarding the availability of injunctive relief. It is undoubtedly true, as the Court stated in Dombrowski, that "[a] criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms." 380 U.S., at 486. But this sort of "chilling effect," as the Court called it, should not by itself justify federal intervention. In the first place, the chilling effect cannot be satisfactorily eliminated by federal injunctive relief. In Dombrowski itself the Court stated that the injunction to be issued there could be lifted if the State obtained an "acceptable limiting construction" from the state courts. The Court then made clear that once this was done, prosecutions could then be brought for conduct occurring before the narrowing construction was made, and proper convictions could stand so long as the defendants were not deprived of fair warning. 380 U.S., at 491 n. 7. The kind of relief granted in Dombrowski thus does not effectively eliminate uncertainty as to the coverage of the state *51 statute and leaves most citizens with virtually the same doubts as before regarding the danger that their conduct might eventually be subjected to criminal sanctions. The chilling effect can, of course, be eliminated by an injunction that would prohibit any prosecution whatever for conduct occurring prior to a satisfactory rewriting of the statute. But the States would then be stripped of all power to prosecute even the socially dangerous and constitutionally unprotected conduct that had been covered by the statute, until a new statute could be passed by the state legislature and approved by the federal courts in potentially lengthy trial and appellate proceedings. Thus, in Dombrowski itself the Court carefully reaffirmed the principle that even in the direct prosecution in the State's own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems. Moreover, the existence of a "chilling effect," even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action. Where a statute does not directly abridge free speech, but—while regulating a subject within the State's power—tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296 (1940); Mine Workers v. Illinois Bar Assn., 389 U.S. 217 (1967). Just as the incidental "chilling effect" of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important *52 and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution. Beyond all this is another, more basic consideration. Procedures for testing the constitutionality of a statute "on its face" in the manner apparently contemplated by Dombrowski, and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation[5] it has been clear that, even when suits of this kind involve a "case or controversy" sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. *53 The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, see, e. g., Landry v. Daley, 280 F. Supp. 938 (ND Ill. 1968), rev'd sub nom. Boyle v. Landry, post, p. 77, ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process. For these reasons, fundamental not only to our federal system but also to the basic functions of the Judicial Branch of the National Government under our Constitution, we hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute "on its face" abridges First Amendment rights. There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the Buck case, supra, we indicated: "It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against *54 whomever an effort might be made to apply it." 313 U.S., at 402. Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be. It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute "on its face" does not in itself justify an injunction against goodfaith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. Because our holding rests on the absence of the factors necessary under equitable principles to justify federal intervention, we have no occasion to consider whether 28 U.S. C. § 2283, which prohibits an injunction against state court proceedings "except as expressly authorized by Act of Congress" would in and of itself be controlling under the circumstances of this case. The judgment of the District Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed. MR. JUSTICE STEWART, with whom MR.

Appellee, John Harris, Jr., was indicted in a state court, charged with violation of the Penal Code 11400 and 11401, known as the Criminal Syndicalism Act, set out below.[1] He then filed *39 a complaint in the Federal District Court, asking that court to enjoin the appellant, er, the District Attorney of Los Angeles County, from prosecuting him, and alleging that the prosecution and even the presence of the Act inhibited him in the exercise of his rights of free speech and press, rights guaranteed him by the First and Fourteenth Amendments. Appellees Jim Dan and Diane Hirsch intervened as plaintiffs in the suit, claiming that the prosecution of Harris would inhibit them as members of the Progressive Labor Party from peacefully advocating the program of their party, which was to replace capitalism with socialism and to abolish the profit system of production in this country. Appellee Farrell Broslawsky, an instructor in history at Los Angeles Valley College, also intervened claiming that the prosecution of Harris made him uncertain as to whether he could *40 teach about the doctrines of Karl Marx or read from the Communist Manifesto as part of his classwork. All claimed that unless the United States court restrained the state prosecution of Harris each would suffer immediate and irreparable injury. A three-judge Federal District Court, convened pursuant to 28 U.S. C. 2284, held that it had jurisdiction and power to restrain the District Attorney from prosecuting, held that the State's Criminal Syndicalism Act was void for vagueness and overbreadth in violation of the First and Fourteenth Amendments, and accordingly restrained the District Attorney from "further prosecution of the currently pending action against plaintiff Harris for alleged violation of the Act." The is before us on appeal by the State's District Attorney er, pursuant to 28 U.S. C. 1253. In his notice of appeal and his jurisdictional statement appellant presented two questions: (1) whether the decision of this Court in holding 's law constitutional in 1927 was binding on the District Court and (2) whether the State's law is constitutional on its face. In this Court the brief for the State of filed at our request, also argues that only Harris, who was indicted, has standing to challenge the State's law, and that issuance of the injunction was a violation of a longstanding judicial policy and of 28 U.S. C. 2283, which provides: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." See, e. g., Atlantic Coast Line R. Without regard to the questions *41 raised about since overruled by or the constitutionality of the state law, we have concluded that the judgment of the District Court, enjoining appellant er from prosecuting under these statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.[2] We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun. I Appellee Harris has been indicted, and was actually being prosecuted by for a violation of its Criminal Syndicalism Act at the time this suit was filed. He thus has an acute, live controversy with the State and its prosecutor. But none of the other parties plaintiff in the District Court, Dan, Hirsch, or Broslawsky, has such a controversy. None has been indicted, arrested, or even threatened by the prosecutor. About these three the three-judge court said: "Plaintiffs Dan and Hirsch allege that they are members of the Progressive Labor Party, which advocates change in industrial ownership and political change, and that they feel inhibited in advocating *42 the program of their political party through peaceful, non-violent means, because of the presence of the Act `on the books,' and because of the pending criminal prosecution against Harris. Plaintiff Broslawsky is a history instructor, and he alleges that he is uncertain as to whether his normal practice of teaching his students about the doctrines of Karl Marx and reading from the Communist Manifesto and other revolutionary works may subject him to prosecution for violation of the Act." Whatever right Harris, who is being prosecuted under the state syndicalism law may have, Dan, Hirsch, and Broslawsky cannot share it with him. If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true—either on the admission of the State's district attorney or on any other evidence— then a genuine controversy might be said to exist. But here appellees Dan, Hirsch, and Broslawsky do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. They claim the right to bring this suit solely because, in the language of their complaint, they "feel inhibited." We do not think this allegation, even if true, is sufficient to bring the equitable jurisdiction of the federal courts into play to enjoin a pending state prosecution. A federal lawsuit to stop a prosecution in a state court is a serious matter. And persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in such s. See Since Harris is actually being prosecuted under the challenged laws, however, we proceed with him as a proper party. *43 II Since the beginning of this country's history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state s free from interference by federal courts. In 1793 an Act unconditionally provided: "[N]or shall a writ of injunction be granted to stay proceedings in any court of a state" c. 22, 5. A comparison of the 1793 Act with 28 U.S. C. 2283, its present-day successor, graphically illustrates how few and minor have been the exceptions granted from the flat, prohibitory language of the old Act. During all this lapse of years from 1793 to 1970 the statutory exceptions to the 1793 congressional enactment have been only three: (1) "except as expressly authorized by Act of Congress"; (2) "where necessary in aid of its jurisdiction"; and (3) "to protect or effectuate its judgments." In addition, a judicial exception to the longstanding policy evidenced by the statute has been made where a person about to be prosecuted in a state court can show that he will, if the proceeding in the state court is not enjoined, suffer irreparable damages. See Ex parte[3] The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable *44 injury if denied equitable relief. The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution, in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism," and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of "Our Federalism." The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," born in the early struggling days of *45 our Union of States, occupies a highly important place in our Nation's history and its future. This brief discussion should be enough to suggest some of the reasons why it has been perfectly natural for our s to repeat time and time again that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions. In suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances: "Ex parte and following s have established the doctrine that when absolutely necessary for protection of constitutional rights courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection." These principles, made clear in the Fenner have been repeatedly followed and reaffirmed in other s involving threatened prosecutions. See, e. g., Spielman Motor *46 Sales ; ; ; ; In all of these s the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is "both great and immediate." Fenner, Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered "irreparable" in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e. g., Ex parte Thus, in the we stressed: "Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. `No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.'" *47 And similarly, in we made clear, after reaffirming this rule, that: "It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith" This is where the law stood when the Court decided and held that an injunction against the enforcement of certain state criminal statutes could properly issue under the circumstances presented in that[4] In Dombrowski, *48 unlike many of the earlier s denying injunctions, the complaint made substantial allegations that: "the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana." The appellants in Dombrowski had offered to prove that their offices had been raided and all their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for lack of probable cause. They also offered to prove that despite the state court order quashing the warrants and suppressing the evidence seized, the prosecutor was continuing to threaten to initiate new prosecutions of appellants under the same statutes, was holding public hearings at which photostatic copies of the illegally seized documents were being used, and was threatening to use other copies of the illegally seized documents to obtain grand jury indictments against the appellants on charges of violating the same statutes. These circumstances, as viewed by the Court sufficiently establish the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention. See, e. g., Indeed, after quoting the Court's statement in concerning the very restricted circumstances under which an injunction could be justified, the Court in Dombrowski went on to say: "But the allegations in this complaint depict a situation in which defense of the State's criminal * prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury." -486. And the Court made clear that even under these circumstances the District Court issuing the injunction would have continuing power to lift it at any time and remit the plaintiffs to the state courts if circumstances 380 U.S., at 1, 2. Similarly, in a divided Court denied an injunction after finding that the record did not establish the necessary bad faith and harassment; the dissenting Justices themselves stressed the very limited role to be allowed for federal injunctions against state criminal prosecutions and differed with the Court only on the question whether the particular facts of that were sufficient to show that the prosecution was brought in bad faith. It is against the background of these principles that we must judge the propriety of an injunction under the circumstances of the present Here a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional claims. There is no suggestion that this single prosecution against Harris is brought in bad faith or is only one of a series of repeated prosecutions to which he will be subjected. In other words, the injury that Harris faces is solely "that incidental to every criminal proceeding brought lawfully and in good faith," and therefore under the settled doctrine we have already described he is not entitled to equitable relief "even if such statutes are unconstitutional," *50 The District Court, however, thought that the Dombrowski decision substantially broadened the availability of injunctions against state criminal prosecutions and that under that decision the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a state statute is found "on its face" to be vague or overly broad, in violation of the First Amendment. We recognize that there are some statements in the Dombrowski opinion that would seem to support this argument. But, as we have already seen, such statements were unnecessary to the decision of that because the Court found that the plaintiffs had alleged a basis for equitable relief under the long-established standards. In addition, we do not regard the reasons adduced to support this position as sufficient to justify such a substantial departure from the established doctrines regarding the availability of injunctive relief. It is undoubtedly true, as the Court stated in Dombrowski, that "[a] criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms." But this sort of "chilling effect," as the Court called it, should not by itself justify federal intervention. In the first place, the chilling effect cannot be satisfactorily eliminated by federal injunctive relief. In Dombrowski itself the Court stated that the injunction to be issued there could be lifted if the State obtained an "acceptable limiting construction" from the state courts. The Court then made clear that once this was done, prosecutions could then be brought for conduct occurring before the narrowing construction was made, and proper convictions could stand so long as the defendants were not deprived of fair warning. 380 U.S., at 1 n. 7. The kind of relief granted in Dombrowski thus does not effectively eliminate uncertainty as to the coverage of the state *51 statute and leaves most citizens with virtually the same doubts as before regarding the danger that their conduct might eventually be subjected to criminal sanctions. The chilling effect can, of course, be eliminated by an injunction that would prohibit any prosecution whatever for conduct occurring prior to a satisfactory rewriting of the statute. But the States would then be stripped of all power to prosecute even the socially dangerous and constitutionally unprotected conduct that had been covered by the statute, until a new statute could be passed by the state legislature and approved by the federal courts in potentially lengthy trial and appellate proceedings. Thus, in Dombrowski itself the Court carefully reaffirmed the principle that even in the direct prosecution in the State's own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems. Moreover, the existence of a "chilling effect," even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action. Where a statute does not directly abridge free speech, but—while regulating a subject within the State's power—tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. ; ; Mine Just as the incidental "chilling effect" of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important *52 and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution. Beyond all this is another, more basic consideration. Procedures for testing the constitutionality of a statute "on its face" in the manner apparently contemplated by Dombrowski, and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation[5] it has been clear that, even when suits of this kind involve a " or controversy" sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. *53 The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, see, e. g., rev'd sub nom. Boyle v. Landry, post, p. 77, ordinarily results in a kind of that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process. For these reasons, fundamental not only to our federal system but also to the basic functions of the Judicial Branch of the National Government under our Constitution, we hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute "on its face" abridges First Amendment rights. There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the we indicated: "It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against *54 whomever an effort might be made to apply it." Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be. It is sufficient for purposes of the present to hold, as we do, that the possible unconstitutionality of a statute "on its face" does not in itself justify an injunction against goodfaith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. Because our holding rests on the absence of the factors necessary under equitable principles to justify federal intervention, we have no occasion to consider whether 28 U.S. C. 2283, which prohibits an injunction against state court proceedings "except as expressly authorized by Act of Congress" would in and of itself be controlling under the circumstances of this The judgment of the District Court is reversed, and the is remanded for further proceedings not inconsistent with this opinion. Reversed. MR. JUSTICE STEWART, with whom MR.

Justice Stevens

dissenting

Bush v. Gore

https://www.courtlistener.com/opinion/118395/bush-v-gore/

https://www.courtlistener.com/api/rest/v3/clusters/118395/

2000-009

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, § 1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion. The federal questions that ultimately emerged in this case are not substantial. Article II provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Ibid. (emphasis added). It does not create state legislatures out of whole cloth, but rather takes them as they come—as creatures born of, and constrained by, their state constitutions. Lest there be any doubt, we stated over 100 years ago in McPherson v. Blacker, 146 U.S. 1, 25 (1892), that "[w]hat is forbidden or required to be done by a State" in the Article II context "is forbidden or required of the legislative power under state constitutions as they exist." In the same vein, we also observed that "[t]he [State's] legislative power is the supreme authority except as limited by the constitution of the State." Ibid.; cf. Smiley v. Holm, 285 U.S. 355, 367 (1932).[1] The legislative power in Florida is subject to judicial review pursuant *124 to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it. Moreover, the Florida Legislature's own decision to employ a unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving electoral disputes. The Florida Supreme Court's exercise of appellate jurisdiction therefore was wholly consistent with, and indeed contemplated by, the grant of authority in Article II. It hardly needs stating that Congress, pursuant to 3 U.S. C. § 5, did not impose any affirmative duties upon the States that their governmental branches could "violate." Rather, § 5 provides a safe harbor for States to select electors in contested elections "by judicial or other methods" established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. Neither § 5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law. Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the "intent of the voter," Fla. Stat. Ann. § 101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation.[2] We found such a violation *125 when individual votes within the same State were weighted unequally, see, e. g., Reynolds v. Sims, 377 U.S. 533, 568 (1964), but we have never before called into question the substantive standard by which a State determines that a vote has been legally cast. And there is no reason to think that the guidance provided to the fact finders, specifically the various canvassing boards, by the "intent of the voter" standard is any less sufficient—or will lead to results any less uniform—than, for example, the "beyond a reasonable doubt" standard employed every day by ordinary citizens in courtrooms across this country.[3] *126 Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, "[t]he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931) (Holmes, J.). If it were otherwise, Florida's decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy[4]—might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design. Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority's disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, *127 the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature's uniform general standard to be established. In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines. It does so on the basis of the deadlines set forth in Title 3 of the United States Code. Ante, at 110. But, as I have already noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. Supra, at 124. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22 J. Legis. 145, 166, n. 154 (1996).[5] Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, "[a] desire for speed is not a general excuse for ignoring equal protection guarantees." Ante, at 108. Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (2000), did the Florida Supreme Court make any substantive *128 change in Florida electoral law.[6] Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do[7]—it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general "intent of the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume—as I do— that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question. What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, *129 the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent.

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, 1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion. The federal questions that ultimately emerged in this case are not substantial. Article II provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." It does not create state legislatures out of whole cloth, but rather takes them as they come—as creatures born of, and constrained by, their state constitutions. Lest there be any doubt, we stated over 100 years ago in that "[w]hat is forbidden or required to be done by a State" in the Article II context "is forbidden or required of the legislative power under state constitutions as they exist." In the same vein, we also observed that "[t]he [State's] legislative power is the supreme authority except as limited by the constitution of the State." ; cf.[1] The legislative power in Florida is subject to judicial review pursuant *124 to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it. Moreover, the Florida Legislature's own decision to employ a unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving electoral disputes. The Florida Supreme Court's exercise of appellate jurisdiction therefore was wholly consistent with, and indeed contemplated by, the grant of authority in Article II. It hardly needs stating that Congress, pursuant to 3 U.S. C. 5, did not impose any affirmative duties upon the States that their governmental branches could "violate." Rather, 5 provides a safe harbor for States to select electors in contested elections "by judicial or other methods" established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. Neither 5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law. Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the "intent of the voter," Fla. Stat. Ann. 101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation.[2] We found such a violation *1 when individual votes within the same State were weighted unequally, see, e. g., but we have never before called into question the substantive standard by which a State determines that a vote has been legally cast. And there is no reason to think that the guidance provided to the fact finders, specifically the various canvassing boards, by the "intent of the voter" standard is any less sufficient—or will lead to results any less uniform—than, for example, the "beyond a reasonable doubt" standard employed every day by ordinary citizens in courtrooms across this country.[3] *126 Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, "[t]he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of If it were otherwise, Florida's decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy[4]—might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design. Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority's disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, *127 the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature's uniform general standard to be established. In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines. It does so on the basis of the deadlines set forth in Title 3 of the United States Code. Ante, at 110. But, as I have already noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College,[5] Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, "[a] desire for speed is not a general excuse for ignoring equal protection guarantees." Ante, at 108. Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing did the Florida Supreme Court make any substantive *128 change in Florida electoral law.[6] Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do[7]—it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general "intent of the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume—as I do— that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question. What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, *129 the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent.

Justice Kagan

majority

Manuel v. Joliet

https://www.courtlistener.com/opinion/4376986/manuel-v-joliet/

https://www.courtlistener.com/api/rest/v3/clusters/4376986/

2016-005

Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer fol- lows from settled precedent. The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Ger- stein v. Pugh, 420 U.S. 103, 111 (1975). And those consti- tutional protections apply even after the start of “legal process” in a criminal case—here, that is, after the judge’s determination of probable cause. See Albright v. Oliver, 510 U.S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below). 2 MANUEL v. JOLIET Opinion of the Court I Shortly after midnight on March 18, 2011, Manuel was riding through Joliet, Illinois, in the passenger seat of a Dodge Charger, with his brother at the wheel. A pair of Joliet police officers pulled the car over when the driver failed to signal a turn. See App. 90. According to the complaint in this case, one of the officers dragged Manuel from the car, called him a racial slur, and kicked and punched him as he lay on the ground. See id., at 31–32, 63.1 The policeman then searched Manuel and found a vitamin bottle containing pills. See id., at 64. Suspecting that the pills were actually illegal drugs, the officers con- ducted a field test of the bottle’s contents. The test came back negative for any controlled substance, leaving the officers with no evidence that Manuel had committed a crime. See id., at 69. Still, the officers arrested Manuel and took him to the Joliet police station. See id., at 70. There, an evidence technician tested the pills once again, and got the same (negative) result. See ibid. But the technician lied in his report, claiming that one of the pills was “found to be . . . positive for the probable pres- ence of ecstasy.” Id., at 92. Similarly, one of the arresting officers wrote in his report that “[f ]rom [ his] training and experience, [ he] knew the pills to be ecstasy.” Id., at 91. On the basis of those statements, another officer swore out a criminal complaint against Manuel, charging him with unlawful possession of a controlled substance. See id., at 52–53. Manuel was brought before a county court judge later that day for a determination of whether there was proba- ble cause for the charge, as necessary for further deten- —————— 1 Because we here review an order dismissing Manuel’s suit, we ac- cept as true all the factual allegations in his complaint. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). Cite as: 580 U. S. ____ (2017) 3 Opinion of the Court tion. See Gerstein, 420 U.S., at 114 (requiring a judicial finding of probable cause following a warrantless arrest to impose any significant pretrial restraint on liberty); Ill. Comp. Stat., ch. 725, §5/109–1 (West 2010) (implementing that constitutional rule). The judge relied exclusively on the criminal complaint—which in turn relied exclusively on the police department’s fabrications—to support a finding of probable cause. Based on that determination, he sent Manuel to the county jail to await trial. In the somewhat obscure legal lingo of this case, Manuel’s subse- quent detention was thus pursuant to “legal process”— because it followed from, and was authorized by, the judge’s probable-cause determination.2 While Manuel sat in jail, the Illinois police laboratory reexamined the seized pills, and on April 1, it issued a report concluding (just as the prior two tests had) that they contained no controlled substances. See App. 51. But for unknown reasons, the prosecution—and, critically for this case, Manuel’s detention—continued for more than another month. Only on May 4 did an Assistant State’s Attorney seek dismissal of the drug charge. See id., at 48, 101. The County Court immediately granted the request, and Manuel was released the next day. In all, he had spent 48 days in pretrial detention. On April 22, 2013, Manuel brought this lawsuit under 42 U.S. C. §1983 against the City of Joliet and several of its police officers (collectively, the City). Section 1983 creates a “species of tort liability,” Imbler v. Pachtman, 424 U.S. 409, 417 (1976), for “the deprivation of any rights, privileges, or immunities secured by the Constitu- —————— 2 Although not addressed in Manuel’s complaint, the police depart- ment’s alleged fabrications did not stop at this initial hearing on probable cause. About two weeks later, on March 30, a grand jury indicted Manuel based on similar false evidence: testimony from one of the arresting officers that “[t]he pills field tested positive” for ecstasy. App. 96 (grand jury minutes). 4 MANUEL v. JOLIET Opinion of the Court tion,” §1983. Manuel’s complaint alleged that the City violated his Fourth Amendment rights in two ways—first by arresting him at the roadside without any reason, and next by “detaining him in police custody” for almost seven weeks based entirely on made-up evidence. See App. 79–80.3 The District Court dismissed Manuel’s suit. See 2014 WL 551626 (ND Ill., Feb. 12, 2014). The court first held that the applicable two-year statute of limitations barred Manuel’s claim for unlawful arrest, because more than two years had elapsed between the date of his arrest (March 18, 2011) and the filing of his complaint (April 22, 2013). But the court relied on another basis in rejecting Manuel’s challenge to his subsequent detention (which stretched from March 18 to May 5, 2011). Binding Circuit prece- dent, the District Court explained, made clear that pretrial detention following the start of legal process could not give rise to a Fourth Amendment claim. See id., at *1 (citing, e.g., Newsome v. McCabe, 256 F.3d 747, 750 (CA7 2001)). According to that line of decisions, a §1983 plaintiff chal- lenging such detention must allege a breach of the Due Process Clause—and must show, to recover on that theory, that state law fails to provide an adequate remedy. See 2014 WL 551626, at *1–*2. Because Manuel’s complaint rested solely on the Fourth Amendment—and because, in any event, Illinois’s remedies were robust enough to pre- clude the due process avenue—the District Court found that Manuel had no way to proceed. See ibid. The Court of Appeals for the Seventh Circuit affirmed —————— 3 Manuel’s allegation of unlawful detention concerns only the period after the onset of legal process—here meaning, again, after the County Court found probable cause that he had committed a crime. See supra, at 3. The police also held Manuel in custody for several hours between his warrantless arrest and his first appearance in court. But through- out this litigation, Manuel has treated that short period as part and parcel of the initial unlawful arrest. See, e.g., Reply Brief 1. Cite as: 580 U. S. ____ (2017) 5 Opinion of the Court the dismissal of Manuel’s claim for unlawful detention (the only part of the District Court’s decision Manuel appealed). See 590 Fed. Appx. 641 (2015). Invoking its prior caselaw, the Court of Appeals reiterated that such claims could not be brought under the Fourth Amend- ment. Once a person is detained pursuant to legal pro- cess, the court stated, “the Fourth Amendment falls out of the picture and the detainee’s claim that the detention is improper becomes [one of] due process.” Id., at 643–644 (quoting Llovet v. Chicago, 761 F.3d 759, 763 (CA7 2014)). And again: “When, after the arrest[,] a person is not let go when he should be, the Fourth Amendment gives way to the due process clause as a basis for challenging his deten- tion.” 590 Fed. Appx., at 643 (quoting Llovet, 761 F.3d, at 764). So the Seventh Circuit held that Manuel’s com- plaint, in alleging only a Fourth Amendment violation, rested on the wrong part of the Constitution: A person detained following the onset of legal process could at most (although, the court agreed, not in Illinois) challenge his pretrial confinement via the Due Process Clause. See 590 Fed. Appx., at 643–644. The Seventh Circuit recognized that its position makes it an outlier among the Courts of Appeals, with ten others taking the opposite view. See id., at 643; Hernandez- Cuevas v. Taylor, 723 F.3d 91, 99 (CA1 2013) (“[T]here is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon proba- ble cause extends through the pretrial period”).4 Still, the —————— 4 See also Singer v. Fulton County Sheriff, 63 F.3d 110, 114–118 (CA2 1995); McKenna v. Philadelphia, 582 F.3d 447, 461 (CA3 2009); Lambert v. Williams, 223 F.3d 257, 260–262 (CA4 2000); Castellano v. Fragozo, 352 F.3d 939, 953–954, 959–960 (CA5 2003) (en banc); Sykes v. Anderson, 625 F.3d 294, 308–309 (CA6 2010); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126–1127 (CA9 2002); Wilkins v. De- Reyes, 528 F.3d 790, 797–799 (CA10 2008); Whiting v. Traylor, 85 F.3d 581, 584–586 (CA11 1996); Pitt v. District of Columbia, 491 F.3d 494, 6 MANUEL v. JOLIET Opinion of the Court court decided, Manuel had failed to offer a sufficient rea- son for overturning settled Circuit precedent; his argu- ment, albeit “strong,” was “better left for the Supreme Court.” 590 Fed. Appx., at 643. On cue, we granted certiorari. 577 U. S. ___ (2016). II The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . . against unreason- able . . . seizures.” Manuel’s complaint seeks just that protection. Government officials, it recounts, detained— which is to say, “seiz[ed]”—Manuel for 48 days following his arrest. See App. 79–80; Brendlin v. California, 551 U.S. 249, 254 (2007) (“A person is seized” whenever offi- cials “restrain[ ] his freedom of movement” such that he is “not free to leave”). And that detention was “unreason- able,” the complaint continues, because it was based solely on false evidence, rather than supported by probable cause. See App. 79–80; Bailey v. United States, 568 U.S. 186, 192 (2013) (“[T]he general rule [is] that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause to believe that the individual has commit- ted a crime”). By their respective terms, then, Manuel’s claim fits the Fourth Amendment, and the Fourth Amendment fits Manuel’s claim, as hand in glove. This Court decided some four decades ago that a claim challenging pretrial detention fell within the scope of the Fourth Amendment. In Gerstein, two persons arrested without a warrant brought a §1983 suit complaining that they had been held in custody for “a substantial period solely on the decision of a prosecutor.” 420 U.S., at 106. The Court looked to the Fourth Amendment to analyze— and uphold—their claim that such a pretrial restraint on liberty is unlawful unless a judge (or grand jury) first —————— 510–511 (CADC 2007). Cite as: 580 U. S. ____ (2017) 7 Opinion of the Court makes a reliable finding of probable cause. See id., at 114, 117, n. 19. The Fourth Amendment, we began, establishes the minimum constitutional “standards and procedures” not just for arrest but also for ensuing “detention.” Id., at 111. In choosing that Amendment “as the rationale for decision,” the Court responded to a concurring Justice’s view that the Due Process Clause offered the better framework: The Fourth Amendment, the majority coun- tered, was “tailored explicitly for the criminal justice system, and it[ ] always has been thought to define” the appropriate process “for seizures of person[s] . . . in crimi- nal cases, including the detention of suspects pending trial.” Id., at 125, n. 27. That Amendment, standing alone, guaranteed “a fair and reliable determination of probable cause as a condition for any significant pretrial restraint.” Id., at 125. Accordingly, those detained prior to trial without such a finding could appeal to “the Fourth Amendment’s protection against unfounded invasions of liberty.” Id., at 112; see id., at 114.5 And so too, a later decision indicates, those objecting to a pretrial deprivation of liberty may invoke the Fourth Amendment when (as here) that deprivation occurs after —————— 5 The Court repeated the same idea in a follow-on decision to Ger- stein. In County of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991), we considered how quickly a jurisdiction must provide the probable-cause determination that Gerstein demanded “as a prerequisite to an extended pretrial detention.” In holding that the decision should occur within 48 hours of an arrest, the majority understood its “task [as] articulat[ing] more clearly the boundaries of what is permissible under the Fourth Amendment.” 500 U.S., at 56. In arguing for still greater speed, the principal dissent invoked the original meaning of “the Fourth Amend- ment’s prohibition of ‘unreasonable seizures,’ insofar as it applies to seizure of the person.” Id., at 60 (Scalia, J., dissenting). The difference between the two opinions was significant, but the commonality still more so: All Justices agreed that the Fourth Amendment provides the appropriate lens through which to view a claim involving pretrial detention. 8 MANUEL v. JOLIET Opinion of the Court legal process commences. The §1983 plaintiff in Albright complained of various pretrial restraints imposed after a court found probable cause to issue an arrest warrant, and then bind him over for trial, based on a policeman’s un- founded charges. See 510 U.S., at 268–269 (plurality opinion). For uncertain reasons, Albright ignored the Fourth Amendment in drafting his complaint; instead, he alleged that the defendant officer had infringed his sub- stantive due process rights. This Court rejected that claim, with five Justices in two opinions remitting Albright to the Fourth Amendment. See id., at 271 (plurality opin- ion) (“We hold that it is the Fourth Amendment . . . under which [ his] claim must be judged”); id., at 290 (Souter, J., concurring in judgment) (“[I]njuries like those [he] alleges are cognizable in §1983 claims founded upon . . . the Fourth Amendment”). “The Framers,” the plurality wrote, “considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.” Id., at 274. That the deprivations at issue were pursuant to legal process made no difference, given that they were (allegedly) unsupported by probable cause; indeed, neither of the two opinions so much as mentioned that procedural circum- stance. Relying on Gerstein, the plurality stated that the Fourth Amendment remained the “relevan[t]” constitu- tional provision to assess the “deprivations of liberty”— most notably, pretrial detention—“that go hand in hand with criminal prosecutions.” 510 U.S., at 274; see id., at 290 (Souter, J., concurring in judgment) (“[R]ules of recov- ery for such harms have naturally coalesced under the Fourth Amendment”). As reflected in Albright’s tracking of Gerstein’s analysis, pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. See supra, at 6. That can Cite as: 580 U. S. ____ (2017) 9 Opinion of the Court happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward, but it has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that reason, it can- not extinguish the detainee’s Fourth Amendment claim— or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. See 590 Fed. Appx., at 643–644. If the complaint is that a form of legal process resulted in pretrial detention unsup- ported by probable cause, then the right allegedly in- fringed lies in the Fourth Amendment.6 For that reason, and contrary to the Seventh Circuit’s view, Manuel stated a Fourth Amendment claim when he —————— 6 The opposite view would suggest an untenable result: that a person arrested pursuant to a warrant could not bring a Fourth Amendment claim challenging the reasonableness of even his arrest, let alone any subsequent detention. An arrest warrant, after all, is a way of initiat- ing legal process, in which a magistrate finds probable cause that a person committed a crime. See Wallace v. Kato, 549 U.S. 384, 389 (2007) (explaining that the seizure of a person was “without legal process” because police officers “did not have a warrant for his arrest”); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §119, pp. 871, 886 (5th ed. 1984) (similar). If legal process is the cut-off point for the Fourth Amendment, then someone arrested (as well as later held) under a warrant procured through false testimony would have to look to the Due Process Clause for relief. But that runs counter to our caselaw. See, e.g., Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568–569 (1971) (holding that an arrest violated the Fourth Amendment because a magistrate’s warrant was not backed by probable cause). And if the Seventh Circuit would reply that arrest warrants are somehow different—that there is legal process and then again there is legal process—the next (and in our view unan- swerable) question would be why. 10 MANUEL v. JOLIET Opinion of the Court sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention.7 Consider again the facts alleged in this case. Police offic- ers initially arrested Manuel without probable cause, based solely on his possession of pills that had field tested negative for an illegal substance. So (putting timeliness issues aside) Manuel could bring a claim for wrongful arrest under the Fourth Amendment. And the same is true (again, disregarding timeliness) as to a claim for wrongful detention—because Manuel’s subsequent weeks in custody were also unsupported by probable cause, and so also constitutionally unreasonable. No evidence of Manuel’s criminality had come to light in between the roadside arrest and the County Court proceeding initiat- ing legal process; to the contrary, yet another test of Man- uel’s pills had come back negative in that period. All that the judge had before him were police fabrications about the pills’ content. The judge’s order holding Manuel for trial therefore lacked any proper basis. And that means Manuel’s ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights. Or put just a bit differently: Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe —————— 7 Even the City no longer appears to contest that conclusion. On multiple occasions during oral argument in this Court, the City agreed that “a Fourth Amendment right . . . survive[d] the initiation of pro- cess” at the hearing in which the county judge found probable cause and ordered detention. Tr. of Oral Arg. 31; see id., at 33 (concurring with the statement that “once [an] individual is brought . . . before a magistrate, and the magistrate using the same bad evidence says, stay here in jail . . . until we get to trial, that that period is a violation of the Fourth Amendment”); id., at 51 (stating that a detainee has “a Fourth Amendment claim” if “misstatements at [such a probable-cause hear- ing] led to ongoing pretrial seizure”). Cite as: 580 U. S. ____ (2017) 11 Opinion of the Court he committed a crime.8 III Our holding—that the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process—does not exhaust the disputed legal —————— 8 The dissent goes some way toward claiming that a different kind of pretrial legal process—a grand jury indictment or preliminary exami- nation—does expunge such a Fourth Amendment claim. See post, at 9, n. 4 (opinion of ALITO, J.) (raising but “not decid[ing] that question”); post, at 10 (suggesting an answer nonetheless). The effect of that view would be to cut off Manuel’s claim on the date of his grand jury indict- ment (March 30)—even though that indictment (like the County Court’s probable-cause proceeding) was entirely based on false testi- mony and even though Manuel remained in detention for 36 days longer. See n. 2, supra. Or said otherwise—even though the legal process he received failed to establish the probable cause necessary for his contin- ued confinement. We can see no principled reason to draw that line. Nothing in the nature of the legal proceeding establishing probable cause makes a difference for purposes of the Fourth Amendment: Whatever its precise form, if the proceeding is tainted—as here, by fabricated evidence—and the result is that probable cause is lacking, then the ensuing pretrial detention violates the confined person’s Fourth Amendment rights, for all the reasons we have stated. By contrast (and contrary to the dissent’s suggestion, see post, at 9, n. 3), once a trial has occurred, the Fourth Amendment drops out: A person challenging the sufficiency of the evidence to support both a conviction and any ensuing incarceration does so under the Due Process Clause of the Fourteenth Amendment. See Jackson v. Virginia, 443 U.S. 307, 318 (1979) (invalidating a conviction under the Due Process Clause when “the record evidence could [not] reasonably support a finding of guilt beyond a reasonable doubt”); Thompson v. Louisville, 362 U.S. 199, 204 (1960) (striking a conviction under the same provision when “the record [wa]s entirely lacking in evidence” of guilt—such that it could not even establish probable cause). Gerstein and Albright, as already suggested, both reflected and recognized that constitutional division of labor. See supra, at 6–8. In their words, the Framers “drafted the Fourth Amendment” to address “the matter of pretrial deprivations of liberty,” Albright, 510 U.S., at 274 (emphasis added), and the Amendment thus provides “standards and procedures” for “the detention of suspects pending trial,” Gerstein, 420 U.S., at 125, n. 27 (emphasis added). 12 MANUEL v. JOLIET Opinion of the Court issues in this case. It addresses only the threshold inquiry in a §1983 suit, which requires courts to “identify the specific constitutional right” at issue. Albright, 510 U.S., at 271. After pinpointing that right, courts still must determine the elements of, and rules associated with, an action seeking damages for its violation. See, e.g., Carey v. Piphus, 435 U.S. 247, 257–258 (1978). Here, the parties particularly disagree over the accrual date of Manuel’s Fourth Amendment claim—that is, the date on which the applicable two-year statute of limitations began to run. The timeliness of Manuel’s suit hinges on the choice be- tween their proposed dates. But with the following brief comments, we remand that issue to the court below. In defining the contours and prerequisites of a §1983 claim, including its rule of accrual, courts are to look first to the common law of torts. See ibid. (explaining that tort principles “provide the appropriate starting point” in specifying the conditions for recovery under §1983); Wal- lace v. Kato, 549 U.S. 384, 388–390 (2007) (same for accrual dates in particular). Sometimes, that review of common law will lead a court to adopt wholesale the rules that would apply in a suit involving the most analogous tort. See id., at 388–390; Heck v. Humphrey, 512 U.S. 477, 483–487 (1994). But not always. Common-law prin- ciples are meant to guide rather than to control the defini- tion of §1983 claims, serving “more as a source of inspired examples than of prefabricated components.” Hartman v. Moore, 547 U.S. 250, 258 (2006); see Rehberg v. Paulk, 566 U.S. 356, 366 (2012) (noting that “§1983 is [not] simply a federalized amalgamation of pre-existing common- law claims”). In applying, selecting among, or adjust- ing common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue. With these precepts as backdrop, Manuel and the City offer competing views about what accrual rule should Cite as: 580 U. S. ____ (2017) 13 Opinion of the Court govern a §1983 suit challenging post-legal-process pretrial detention. According to Manuel, that Fourth Amendment claim accrues only upon the dismissal of criminal charges— here, on May 4, 2011, less than two years before he brought his suit. See Reply Brief 2; Brief for United States as Amicus Curiae 24–25, n. 16 (taking the same position). Relying on this Court’s caselaw, Manuel analo- gizes his claim to the common-law tort of malicious prose- cution. See Reply Brief 9; Wallace, 549 U.S., at 389–390. An element of that tort is the “termination of the . . . proceeding in favor of the accused”; and accordingly, the statute of limitations does not start to run until that ter- mination takes place. Heck, 512 U.S., at 484, 489. Man- uel argues that following the same rule in suits like his will avoid “conflicting resolutions” in §1983 litigation and criminal proceedings by “preclud[ing] the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution.” Id., at 484, 486; see Reply Brief 10–11; Brief for United States as Amicus Curiae 24–25, n. 16. In support of Manuel’s posi- tion, all but two of the ten Courts of Appeals that have recognized a Fourth Amendment claim like his have in- corporated a “favorable termination” element and so pegged the statute of limitations to the dismissal of the criminal case. See n. 4, supra.9 That means in the great majority of Circuits, Manuel’s claim would be timely. The City, however, contends that any such Fourth Amendment claim accrues (and the limitations period starts to run) on the date of the initiation of legal pro- cess—here, on March 18, 2011, more than two years before Manuel filed suit. See Brief for Respondents 33. Accord- ing to the City, the most analogous tort to Manuel’s consti- —————— 9 The two exceptions—the Ninth and D. C. Circuits—have not yet weighed in on whether a Fourth Amendment claim like Manuel’s includes a “favorable termination” element. 14 MANUEL v. JOLIET Opinion of the Court tutional claim is not malicious prosecution but false ar- rest, which accrues when legal process commences. See Tr. of Oral Arg. 47; Wallace, 549 U.S., at 389 (noting accrual rule for false arrest suits). And even if malicious prosecution were the better comparison, the City contin- ues, a court should decline to adopt that tort’s favorable- termination element and associated accrual rule in adjudi- cating a §1983 claim involving pretrial detention. That element, the City argues, “make[s] little sense” in this context because “the Fourth Amendment is concerned not with the outcome of a prosecution, but with the legality of searches and seizures.” Brief for Respondents 16. And finally, the City contends that Manuel forfeited an alter- native theory for treating his date of release as the date of accrual: to wit, that his pretrial detention “constitute[d] a continuing Fourth Amendment violation,” each day of which triggered the statute of limitations anew. Id., at 29, and n. 6; see Tr. of Oral Arg. 36; see also Albright, 510 U.S., at 280 (GINSBURG, J., concurring) (propounding a similar view). So Manuel, the City concludes, lost the opportunity to recover for his pretrial detention by waiting too long to file suit. We leave consideration of this dispute to the Court of Appeals. “[W]e are a court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). Be- cause the Seventh Circuit wrongly held that Manuel lacked any Fourth Amendment claim once legal process began, the court never addressed the elements of, or rules applicable to, such a claim. And in particular, the court never confronted the accrual issue that the parties contest here.10 On remand, the Court of Appeals should decide —————— 10 The dissent would have us address these questions anyway, on the ground that “the conflict on the malicious prosecution question was the centerpiece of Manuel’s argument in favor of certiorari.” Post, at 2. But the decision below did not implicate a “conflict on the malicious prosecution question”—because the Seventh Circuit, in holding that Cite as: 580 U. S. ____ (2017) 15 Opinion of the Court that question, unless it finds that the City has previously waived its timeliness argument. See Reply to Brief in Opposition 1–2 (addressing the possibility of waiver); Tr. of Oral Arg. 40–44 (same). And so too, the court may consider any other still-live issues relating to the contours of Manuel’s Fourth Amendment claim for unlawful pretrial detention. * * * For the reasons stated, we reverse the judgment of the Seventh Circuit and remand the case for further proceed- ings consistent with this opinion. It is so ordered. —————— detainees like Manuel could not bring a Fourth Amendment claim at all, never considered whether (and, if so, how) that claim should resem- ble the malicious prosecution tort. Nor did Manuel’s petition for certiorari suggest otherwise. The principal part of his question pre- sented—mirroring the one and only Circuit split involving the decision below—reads as follows: “[W]hether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process.” Pet. for Cert. i. That is exactly the issue we have resolved. The rest of Manuel’s question did indeed express a view as to what would follow from an affirmative answer (“so as to allow a malicious prosecution claim”). Ibid. (And as the dissent notes, the Seventh Circuit recounted that he made the same argument in that court. See post, at 2, n. 1.) But as to that secondary issue, we think (for all the reasons just stated) that Manuel jumped the gun. See supra, at 11–14. And contra the dissent, his doing so provides no warrant for our doing so too. Cite as: 580 U. S. ____ (2017) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 14–9496 _________________ ELIJAH MANUEL, PETITIONER v. CITY OF JOLIET, ILLINOIS, ET AL.

Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer fol- lows from settled precedent. The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Ger- And those consti- tutional protections apply even after the start of “legal process” in a criminal case—here, that is, after the judge’s determination of probable cause. See ; (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below). MANUEL v. JOLIET Opinion of the Court I Shortly after midnight on March 18, 011, Manuel was riding through Joliet, Illinois, in the passenger seat of a Dodge Charger, with his brother at the wheel. A pair of Joliet police officers pulled the car over when the driver failed to signal a turn. See App. 90. According to the complaint in this case, one of the officers dragged Manuel from the car, called him a racial slur, and kicked and punched him as he lay on the ground. See at 31–3, 63.1 The policeman then searched Manuel and found a vitamin bottle containing pills. See Suspecting that the pills were actually illegal drugs, the officers con- ducted a field test of the bottle’s contents. The test came back negative for any controlled substance, leaving the officers with no evidence that Manuel had committed a crime. See Still, the officers arrested Manuel and took him to the Joliet police station. See There, an evidence technician tested the pills once again, and got the same (negative) result. See But the technician lied in his report, claiming that one of the pills was “found to be positive for the probable pres- ence of ecstasy.” Similarly, one of the arresting officers wrote in his report that “[f ]rom [ his] training and experience, [ he] knew the pills to be ecstasy.” On the basis of those statements, another officer swore out a criminal complaint against Manuel, charging him with unlawful possession of a controlled substance. See at 5–53. Manuel was brought before a county court judge later that day for a determination of whether there was proba- ble cause for the charge, as necessary for further deten- —————— 1 Because we here review an order dismissing Manuel’s suit, we ac- cept as true all the factual allegations in his complaint. See, e.g., Cite as: 580 U. S. (017) 3 Opinion of the Court tion. See (requiring a judicial finding of probable cause following a warrantless arrest to impose any significant pretrial restraint on liberty); Ill. Comp. Stat., ch. 75, (implementing that constitutional rule). The judge relied exclusively on the criminal complaint—which in turn relied exclusively on the police department’s fabrications—to support a finding of probable cause. Based on that determination, he sent Manuel to the county jail to await trial. In the somewhat obscure legal lingo of this case, Manuel’s subse- quent detention was thus pursuant to “legal process”— because it followed from, and was authorized by, the judge’s probable-cause determination. While Manuel sat in jail, the Illinois police laboratory reexamined the seized pills, and on April 1, it issued a report concluding (just as the prior two tests had) that they contained no controlled substances. See App. 51. But for unknown reasons, the prosecution—and, critically for this case, Manuel’s detention—continued for more than another month. Only on May 4 did an Assistant State’s Attorney seek dismissal of the drug charge. See 101. The County Court immediately granted the request, and Manuel was released the next day. In all, he had spent 48 days in pretrial detention. On April Manuel brought this lawsuit under 4 U.S. C. against the City of Joliet and several of its police officers (collectively, the City). Section 1983 creates a “species of tort liability,” for “the deprivation of any rights, privileges, or immunities secured by the Constitu- —————— Although not addressed in Manuel’s complaint, the police depart- ment’s alleged fabrications did not stop at this initial hearing on probable cause. About two weeks later, on March 30, a grand jury indicted Manuel based on similar false evidence: testimony from one of the arresting officers that “[t]he pills field tested positive” for ecstasy. App. 96 (grand jury minutes). 4 MANUEL v. JOLIET Opinion of the Court tion,” Manuel’s complaint alleged that the City violated his Fourth Amendment rights in two ways—first by arresting him at the roadside without any reason, and next by “detaining him in police custody” for almost seven weeks based entirely on made-up evidence. See App. 79–80.3 The District Court dismissed Manuel’s suit. See WL 55166 The court first held that the applicable two-year statute of limitations barred Manuel’s claim for unlawful arrest, because more than two years had elapsed between the date of his arrest (March 18, 011) and the filing of his complaint But the court relied on another basis in rejecting Manuel’s challenge to his subsequent detention (which stretched from March 18 to May 5, 011). Binding Circuit prece- dent, the District Court explained, made clear that pretrial detention following the start of legal process could not give rise to a Fourth Amendment claim. See at *1 ). According to that line of decisions, a plaintiff chal- lenging such detention must allege a breach of the Due Process Clause—and must show, to recover on that theory, that state law fails to provide an adequate remedy. See at *1–*. Because Manuel’s complaint rested solely on the Fourth Amendment—and because, in any event, Illinois’s remedies were robust enough to pre- clude the due process avenue—the District Court found that Manuel had no way to proceed. See The Court of Appeals for the Seventh Circuit affirmed —————— 3 Manuel’s allegation of unlawful detention concerns only the period after the onset of legal process—here meaning, again, after the County Court found probable cause that he had committed a crime. See at 3. The police also held Manuel in custody for several hours between his warrantless arrest and his first appearance in court. But through- out this litigation, Manuel has treated that short period as part and parcel of the initial unlawful arrest. See, e.g., Reply Brief 1. Cite as: 580 U. S. (017) 5 Opinion of the Court the dismissal of Manuel’s claim for unlawful detention (the only part of the District Court’s decision Manuel appealed). See Invoking its prior caselaw, the Court of Appeals reiterated that such claims could not be brought under the Fourth Amend- ment. Once a person is detained pursuant to legal pro- cess, the court stated, “the Fourth Amendment falls out of the picture and the detainee’s claim that the detention is improper becomes [one of] due process.” 3–644 ). And again: “When, after the arrest[,] a person is not let go when he should be, the Fourth Amendment gives way to the due process clause as a basis for challenging his deten- tion.” 590 Fed. Appx., 3 (quoting Llovet, 761 F.3d, at 764). So the Seventh Circuit held that Manuel’s com- plaint, in alleging only a Fourth Amendment violation, rested on the wrong part of the Constitution: A person detained following the onset of legal process could at most (although, the court agreed, not in Illinois) challenge his pretrial confinement via the Due Process Clause. See 590 Fed. Appx., 3–644. The Seventh Circuit recognized that its position makes it an outlier among the Courts of Appeals, with ten others taking the opposite view. See 3; Hernandez- (“[T]here is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon proba- ble cause extends through the pretrial period”).4 Still, the —————— 4 See also 114–118 (CA 15); ; ; Castellano v. Fragozo, ; Sykes v. Anderson, ; 307 F.3d 9, ; 797–7 ; Whiting v. Traylor, 85 F.3d 581, 584–586 (CA11 16); 6 MANUEL v. JOLIET Opinion of the Court court decided, Manuel had failed to offer a sufficient rea- son for overturning settled Circuit precedent; his argu- ment, albeit “strong,” was “better left for the Supreme Court.” 590 Fed. Appx., 3. On cue, we granted certiorari. 577 U. S. (016). II The Fourth Amendment protects “[t]he right of the people to be secure in their persons against unreason- able seizures.” Manuel’s complaint seeks just that protection. Government officials, it recounts, detained— which is to say, “seiz[ed]”—Manuel for 48 days following his arrest. See App. 79–80; Brendlin v. California, 551 U.S. 49, 54 (007) (“A person is seized” whenever offi- cials “restrain[ ] his freedom of movement” such that he is “not free to leave”). And that detention was “unreason- able,” the complaint continues, because it was based solely on false evidence, rather than supported by probable cause. See App. 79–80; Bailey v. United States, 568 U.S. 186, 19 (“[T]he general rule [is] that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause to believe that the individual has commit- ted a crime”). By their respective terms, then, Manuel’s claim fits the Fourth Amendment, and the Fourth Amendment fits Manuel’s claim, as hand in glove. This Court decided some four decades ago that a claim challenging pretrial detention fell within the scope of the Fourth Amendment. In two persons arrested without a warrant brought a suit complaining that they had been held in custody for “a substantial period solely on the decision of a prosecutor.” The Court looked to the Fourth Amendment to analyze— and uphold—their claim that such a pretrial restraint on liberty is unlawful unless a judge (or grand jury) first —————— 510–511 (CADC 007). Cite as: 580 U. S. (017) 7 Opinion of the Court makes a reliable finding of probable cause. See 117, n. 19. The Fourth Amendment, we began, establishes the minimum constitutional “standards and procedures” not just for arrest but also for ensuing “detention.” at In choosing that Amendment “as the rationale for decision,” the Court responded to a concurring Justice’s view that the Due Process Clause offered the better framework: The Fourth Amendment, the majority coun- tered, was “tailored explicitly for the criminal justice system, and it[ ] always has been thought to define” the appropriate process “for seizures of person[s] in crimi- nal cases, including the detention of suspects pending trial.” That Amendment, standing alone, guaranteed “a fair and reliable determination of probable cause as a condition for any significant pretrial restraint.” Accordingly, those detained prior to trial without such a finding could appeal to “the Fourth Amendment’s protection against unfounded invasions of liberty.” ; see5 And so too, a later decision indicates, those objecting to a pretrial deprivation of liberty may invoke the Fourth Amendment when (as here) that deprivation occurs after —————— 5 The Court repeated the same idea in a follow-on decision to Ger- stein. In County of (11), we considered how quickly a jurisdiction must provide the probable-cause determination that demanded “as a prerequisite to an extended pretrial detention.” In holding that the decision should occur within 48 hours of an arrest, the majority understood its “task [as] articulat[ing] more clearly the boundaries of what is permissible under the Fourth Amendment.” In arguing for still greater speed, the principal dissent invoked the original meaning of “the Fourth Amend- ment’s prohibition of ‘unreasonable seizures,’ insofar as it applies to seizure of the person.” The difference between the two opinions was significant, but the commonality still more so: All Justices agreed that the Fourth Amendment provides the appropriate lens through which to view a claim involving pretrial detention. 8 MANUEL v. JOLIET Opinion of the Court legal process commences. The plaintiff in complained of various pretrial restraints imposed after a court found probable cause to issue an arrest warrant, and then bind him over for trial, based on a policeman’s un- founded charges. See –69 (plurality opinion). For uncertain reasons, ignored the Fourth Amendment in drafting his complaint; instead, he alleged that the defendant officer had infringed his sub- stantive due process rights. This Court rejected that claim, with five Justices in two opinions remitting to the Fourth Amendment. See (plurality opin- ion) (“We hold that it is the Fourth Amendment under which [ his] claim must be judged”); (Souter, J., concurring in judgment) (“[I]njuries like those [he] alleges are cognizable in claims founded upon the Fourth Amendment”). “The Framers,” the plurality wrote, “considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.” at That the deprivations at issue were pursuant to legal process made no difference, given that they were (allegedly) unsupported by probable cause; indeed, neither of the two opinions so much as mentioned that procedural circum- stance. Relying on the plurality stated that the Fourth Amendment remained the “relevan[t]” constitu- tional provision to assess the “deprivations of liberty”— most notably, pretrial detention—“that go hand in hand with criminal prosecutions.” 510 U.S., at ; see at 90 (Souter, J., concurring in judgment) (“[R]ules of recov- ery for such harms have naturally coalesced under the Fourth Amendment”). As reflected in ’s tracking of ’s analysis, pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. See That can Cite as: 580 U. S. (017) 9 Opinion of the Court happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward, but it has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that reason, it can- not extinguish the detainee’s Fourth Amendment claim— or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. See 590 Fed. Appx., 3–644. If the complaint is that a form of legal process resulted in pretrial detention unsup- ported by probable cause, then the right allegedly in- fringed lies in the Fourth Amendment.6 For that reason, and contrary to the Seventh Circuit’s view, Manuel stated a Fourth Amendment claim when he —————— 6 The opposite view would suggest an untenable result: that a person arrested pursuant to a warrant could not bring a Fourth Amendment claim challenging the reasonableness of even his arrest, let alone any subsequent detention. An arrest warrant, after all, is a way of initiat- ing legal process, in which a magistrate finds probable cause that a person committed a crime. See (007) (explaining that the seizure of a person was “without legal process” because police officers “did not have a warrant for his arrest”); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts pp. 871, 886 (5th ed. 1984) (similar). If legal process is the cut-off point for the Fourth Amendment, then someone arrested (as well as later held) under a warrant procured through false testimony would have to look to the Due Process Clause for relief. But that runs counter to our caselaw. See, e.g., (holding that an arrest violated the Fourth Amendment because a magistrate’s warrant was not backed by probable cause). And if the Seventh Circuit would reply that arrest warrants are somehow different—that there is legal process and then again there is legal process—the next (and in our view unan- swerable) question would be why. 10 MANUEL v. JOLIET Opinion of the Court sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention.7 Consider again the facts alleged in this case. Police offic- ers initially arrested Manuel without probable cause, based solely on his possession of pills that had field tested negative for an illegal substance. So (putting timeliness issues aside) Manuel could bring a claim for wrongful arrest under the Fourth Amendment. And the same is true (again, disregarding timeliness) as to a claim for wrongful detention—because Manuel’s subsequent weeks in custody were also unsupported by probable cause, and so also constitutionally unreasonable. No evidence of Manuel’s criminality had come to light in between the roadside arrest and the County Court proceeding initiat- ing legal process; to the contrary, yet another test of Man- uel’s pills had come back negative in that period. All that the judge had before him were police fabrications about the pills’ content. The judge’s order holding Manuel for trial therefore lacked any proper basis. And that means Manuel’s ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights. Or put just a bit differently: Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe —————— 7 Even the City no longer appears to contest that conclusion. On multiple occasions during oral argument in this Court, the City agreed that “a Fourth Amendment right survive[d] the initiation of pro- cess” at the hearing in which the county judge found probable cause and ordered detention. Tr. of Oral Arg. 31; see (concurring with the statement that “once [an] individual is brought before a magistrate, and the magistrate using the same bad evidence says, stay here in jail until we get to trial, that that period is a violation of the Fourth Amendment”); (stating that a detainee has “a Fourth Amendment claim” if “misstatements at [such a probable-cause hear- ing] led to ongoing pretrial seizure”). Cite as: 580 U. S. (017) 11 Opinion of the Court he committed a crime.8 III Our holding—that the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process—does not exhaust the disputed legal —————— 8 The dissent goes some way toward claiming that a different kind of pretrial legal process—a grand jury indictment or preliminary exami- nation—does expunge such a Fourth Amendment claim. See post, at 9, n. 4 (opinion of ALITO, J.) (raising but “not decid[ing] that question”); post, at 10 (suggesting an answer nonetheless). The effect of that view would be to cut off Manuel’s claim on the date of his grand jury indict- ment (March 30)—even though that indictment (like the County Court’s probable-cause proceeding) was entirely based on false testi- mony and even though Manuel remained in detention for 36 days longer. See n. Or said otherwise—even though the legal process he received failed to establish the probable cause necessary for his contin- ued confinement. We can see no principled reason to draw that line. Nothing in the nature of the legal proceeding establishing probable cause makes a difference for purposes of the Fourth Amendment: Whatever its precise form, if the proceeding is tainted—as here, by fabricated evidence—and the result is that probable cause is lacking, then the ensuing pretrial detention violates the confined person’s Fourth Amendment rights, for all the reasons we have stated. By contrast (and contrary to the dissent’s suggestion, see post, at 9, n. 3), once a trial has occurred, the Fourth Amendment drops out: A person challenging the sufficiency of the evidence to support both a conviction and any ensuing incarceration does so under the Due Process Clause of the Fourteenth Amendment. See 318 (1979) (invalidating a conviction under the Due Process Clause when “the record evidence could [not] reasonably support a finding of guilt beyond a reasonable doubt”); Thompson v. Louisville, 36 U.S. 1, 04 (1960) (striking a conviction under the same provision when “the record [wa]s entirely lacking in evidence” of guilt—such that it could not even establish probable cause). and as already suggested, both reflected and recognized that constitutional division of labor. See –8. In their words, the Framers “drafted the Fourth Amendment” to address “the matter of pretrial deprivations of liberty,” 510 U.S., at and the Amendment thus provides “standards and procedures” for “the detention of suspects pending trial,” 40 U.S., 1 MANUEL v. JOLIET Opinion of the Court issues in this case. It addresses only the threshold inquiry in a suit, which requires courts to “identify the specific constitutional right” at issue. 510 U.S., After pinpointing that right, courts still must determine the elements of, and rules associated with, an action seeking damages for its violation. See, e.g., Carey v. Piphus, 435 U.S. 57–58 Here, the parties particularly disagree over the accrual date of Manuel’s Fourth Amendment claim—that is, the date on which the applicable two-year statute of limitations began to run. The timeliness of Manuel’s suit hinges on the choice be- tween their proposed dates. But with the following brief comments, we remand that issue to the court below. In defining the contours and prerequisites of a claim, including its rule of accrual, courts are to look first to the common law of torts. See (explaining that tort principles “provide the appropriate starting point” in specifying the conditions for recovery under ); Wal- (007) (same for accrual dates in particular). Sometimes, that review of common law will lead a court to adopt wholesale the rules that would apply in a suit involving the most analogous tort. See at ; v. Humphrey, 51 U.S. 7, 483–487 But not always. Common-law prin- ciples are meant to guide rather than to control the defini- tion of claims, serving “more as a source of inspired examples than of prefabricated components.” Hartman v. Moore, 5 U.S. 50, 58 (006); see (01) (noting that “ is [not] simply a federalized amalgamation of pre-existing common- law claims”). In applying, selecting among, or adjust- ing common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue. With these precepts as backdrop, Manuel and the City offer competing views about what accrual rule should Cite as: 580 U. S. (017) 13 Opinion of the Court govern a suit challenging post-legal-process pretrial detention. According to Manuel, that Fourth Amendment claim accrues only upon the dismissal of criminal charges— here, on May 4, 011, less than two years before he brought his suit. See Reply Brief ; Brief for United States as Amicus Curiae 4–5, n. 16 (taking the same position). Relying on this Court’s caselaw, Manuel analo- gizes his claim to the common-law tort of malicious prose- cution. See Reply Brief 9; 549 U.S., at –390. An element of that tort is the “termination of the proceeding in favor of the accused”; and accordingly, the statute of limitations does not start to run until that ter- mination takes place. 51 U.S., 4, 489. Man- uel argues that following the same rule in suits like his will avoid “conflicting resolutions” in litigation and criminal proceedings by “preclud[ing] the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution.” at 484, 486; see Reply Brief 10–11; Brief for United States as Amicus Curiae 4–5, n. 16. In support of Manuel’s posi- tion, all but two of the ten Courts of Appeals that have recognized a Fourth Amendment claim like his have in- corporated a “favorable termination” element and so pegged the statute of limitations to the dismissal of the criminal case. See n. 4, 9 That means in the great majority of Circuits, Manuel’s claim would be timely. The City, however, contends that any such Fourth Amendment claim accrues (and the limitations period starts to run) on the date of the initiation of legal pro- cess—here, on March 18, 011, more than two years before Manuel filed suit. See Brief for Respondents 33. Accord- ing to the City, the most analogous tort to Manuel’s consti- —————— 9 The two exceptions—the Ninth and D. C. Circuits—have not yet weighed in on whether a Fourth Amendment claim like Manuel’s includes a “favorable termination” element. 14 MANUEL v. JOLIET Opinion of the Court tutional claim is not malicious prosecution but false ar- rest, which accrues when legal process commences. See Tr. of Oral Arg. ; 549 U.S., at (noting accrual rule for false arrest suits). And even if malicious prosecution were the better comparison, the City contin- ues, a court should decline to adopt that tort’s favorable- termination element and associated accrual rule in adjudi- cating a claim involving pretrial detention. That element, the City argues, “make[s] little sense” in this context because “the Fourth Amendment is concerned not with the outcome of a prosecution, but with the legality of searches and seizures.” Brief for Respondents 16. And finally, the City contends that Manuel forfeited an alter- native theory for treating his date of release as the date of accrual: to wit, that his pretrial detention “constitute[d] a continuing Fourth Amendment violation,” each day of which triggered the statute of limitations anew. at 9, and n. 6; see Tr. of Oral Arg. 36; see also 510 U.S., at 80 (GINSBURG, J., concurring) (propounding a similar view). So Manuel, the City concludes, lost the opportunity to recover for his pretrial detention by waiting too long to file suit. We leave consideration of this dispute to the Court of Appeals. “[W]e are a court of review, not of first view.” (005). Be- cause the Seventh Circuit wrongly held that Manuel lacked any Fourth Amendment claim once legal process began, the court never addressed the elements of, or rules applicable to, such a claim. And in particular, the court never confronted the accrual issue that the parties contest here.10 On remand, the Court of Appeals should decide —————— 10 The dissent would have us address these questions anyway, on the ground that “the conflict on the malicious prosecution question was the centerpiece of Manuel’s argument in favor of certiorari.” Post, at But the decision below did not implicate a “conflict on the malicious prosecution question”—because the Seventh Circuit, in holding that Cite as: 580 U. S. (017) 15 Opinion of the Court that question, unless it finds that the City has previously waived its timeliness argument. See Reply to Brief in Opposition 1– (addressing the possibility of waiver); Tr. of Oral Arg. 40–44 (same). And so too, the court may consider any other still-live issues relating to the contours of Manuel’s Fourth Amendment claim for unlawful pretrial detention. * * * For the reasons stated, we reverse the judgment of the Seventh Circuit and remand the case for further proceed- ings consistent with this opinion. It is so ordered. —————— detainees like Manuel could not bring a Fourth Amendment claim at all, never considered whether (and, if so, how) that claim should resem- ble the malicious prosecution tort. Nor did Manuel’s petition for certiorari suggest otherwise. The principal part of his question pre- sented—mirroring the one and only Circuit split involving the decision below—reads as follows: “[W]hether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process.” Pet. for Cert. i. That is exactly the issue we have resolved. The rest of Manuel’s question did indeed express a view as to what would follow from an affirmative answer (“so as to allow a malicious prosecution claim”). (And as the dissent notes, the Seventh Circuit recounted that he made the same argument in that court. See post, at n. 1.) But as to that secondary issue, we think (for all the reasons just stated) that Manuel jumped the gun. See at 11–14. And contra the dissent, his doing so provides no warrant for our doing so too. Cite as: 580 U. S. (017) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 14–9496 ELIJAH MANUEL, PETITIONER v. CITY OF JOLIET, ILLINOIS, ET AL.

Justice Scalia

concurring

Gonzales v. Raich

https://www.courtlistener.com/opinion/799995/gonzales-v-raich/

https://www.courtlistener.com/api/rest/v3/clusters/799995/

2004-054

I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced. Since Perez v. United States, 402 U.S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the *34 channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. Id., at 150; see United States v. Morrison, 529 U.S. 598, 608-609 (2000); United States v. Lopez, 514 U.S. 549, 558-559 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277 (1981). The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301-302 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39-40 (1895) (Harlan, J., dissenting).[1] And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws *35 governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. I Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e. g., Hodel, supra, at 281 (surface coal mining); Katzenbach, supra, at 300 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (discrimination by hotels); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 237 (1948) (intrastate price fixing); Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U.S. 495, 517, 524-525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope of Congress's authority in this regard: "[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Lopez, supra, at 560; Morrison, supra, at 610 (same). This principle is not without limitation. In Lopez and Morrison, the Court — conscious of the potential of the "substantially affects" test to "`obliterate the distinction between what is national and what is local,'" Lopez, supra, at 566-567 *36 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935)); see also Morrison, supra, at 615-616 — rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. Lopez, supra, at 564-566; Morrison, supra, at 617-618. "[I]f we were to accept [such] arguments," the Court reasoned in Lopez, "we are hard pressed to posit any activity by an individual that Congress is without power to regulate." 514 U. S., at 564; see also Morrison, supra, at 615-616. Thus, although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to "pile inference upon inference," Lopez, supra, at 567, in order to establish that noneconomic activity has a substantial effect on interstate commerce. As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 514 U. S., at 561. This statement referred to those cases permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the granted power." Wrightwood Dairy Co., supra, at 119; see also United States v. Darby, 312 U.S. 100, 118-119 (1941); Shreveport Rate Cases, supra, at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective." 315 U. S., at 118-119. *37 Although this power "to make ... regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,[2] and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121. In Darby, for instance, the Court explained that "Congress, having ... adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards," 312 U. S., at 121, could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, id., at 119-121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, id., at 125. While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a "great effect" on interstate commerce, id., at 122-123, it affirmed the latter on the sole ground that "[t]he requirement *38 for records even of the intrastate transaction is an appropriate means to the legitimate end," id., at 125. As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause does not give "Congress ... the authority to regulate the internal commerce of a State, as such," but it does allow Congress "to take all measures necessary or appropriate to" the effective regulation of the interstate market, "although intrastate transactions ... may thereby be controlled." 234 U. S., at 353; see also Jones & Laughlin Steel Corp., supra, at 38 (the logic of the Shreveport Rate Cases is not limited to instrumentalities of commerce). II Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to little "more than a drafting guide." Post, at 46 (opinion of O'CONNOR, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce. See Lopez, supra, at 561; ante, at 18, 24-25. This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." Lopez, supra, at 567-568. Lopez and Morrison affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond *39 the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; Lopez expressly disclaimed that it was such a case, 514 U. S., at 561, and Morrison did not even discuss the possibility that it was. (The Court of Appeals in Morrison made clear that it was not. See Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820, 834-835 (CA4 1999) (en banc).) To dismiss this distinction as "superficial and formalistic," see post, at 47 (O'CONNOR, J., dissenting), is to misunderstand the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See McCulloch v. Maryland, 4 Wheat. 316, 421-422 (1819). And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Id., at 421. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." Ibid. These phrases are not merely hortatory. For example, cases such as Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992), affirm that a law is not "`proper for carrying into Execution the Commerce Clause'" "[w]hen [it] violates [a constitutional] principle of state sovereignty." Printz, supra, at 923-924; see also New York, supra, at 166. III The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, *40 foster and protect the commerce, but embraces those which prohibit it." Darby, supra, at 113. See also Hipolite Egg Co. v. United States, 220 U.S. 45, 58 (1911); Lottery Case, 188 U.S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances — both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S. C. §§ 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market — and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.[3]*41 See ante, at 25-33. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for "medical" marijuana and the more general marijuana market. See ante, at 30, and n. 38. "To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution." McCulloch, 4 Wheat., at 424. Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation "inappropriate," id., at 421 — except to argue that the CSA regulates an area typically left to state regulation. See post, at 48, 51 (opinion of O'CONNOR, J.); post, at 66 (opinion of THOMAS, J.); Brief for Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress." National League of Cities v. Usery, 426 U.S. 833, 840 (1976); see Cleveland v. United States, 329 U.S. 14, 19 (1946); McCulloch, supra, at 424. At bottom, respondents' *42 state-sovereignty argument reduces to the contention that federal regulation of the activities permitted by California's Compassionate Use Act is not sufficiently necessary to be "necessary and proper" to Congress's regulation of the interstate market. For the reasons given above and in the Court's opinion, I cannot agree. * * * I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation. See Lopez, 514 U. S., at 561. That is sufficient to authorize the application of the CSA to respondents.

I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced. Since our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the *34 channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. ; see United ; United ; The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. ; ; United ; Shreveport Rate ; United[1] And the category of "activities that substantially affect interstate commerce," is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws *35 governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. I Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e. g., ; ; Heart of Atlanta Motel, ; Mandeville Island Farms, ; Board of Trade of ; U.S. 495, and recognized the expansive scope of Congress's authority in this regard: "[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." ; This principle is not without limitation. In and the Court — conscious of the potential of the "substantially affects" test to "`obliterate the distinction between what is national and what is local,'" at 566-567 *36 ); see also — rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. ; "[I]f we were to accept [such] arguments," the Court reasoned in "we are hard pressed to posit any activity by an individual that Congress is without power to regulate." ; see also Thus, although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to "pile inference upon inference," in order to establish that noneconomic activity has a substantial effect on interstate commerce. As we implicitly acknowledged in however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." This statement referred to those cases permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the granted power." Wrightwood Dairy at ; see also United 118- ; Shreveport Rate at As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective." -. *37 Although this power "to make regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,[2] and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See In for instance, the Court explained that "Congress, having adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards," 312 U. S., could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, at -121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a "great effect" on interstate commerce, it affirmed the latter on the sole ground that "[t]he requirement *38 for records even of the intrastate transaction is an appropriate means to the legitimate end," As the Court said in the Shreveport Rate the Necessary and Proper Clause does not give "Congress the authority to regulate the internal commerce of a State, as such," but it does allow Congress "to take all measures necessary or appropriate to" the effective regulation of the interstate market, "although intrastate transactions may thereby be controlled." 234 U. S., at ; see also Jones & Laughlin Steel (the logic of the Shreveport Rate is not limited to instrumentalities of commerce). II Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces and to little "more than a drafting guide." Post, at 46 (opinion of O'CONNOR, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could undercut" its regulation of interstate commerce. See ; ante, at 18, 24-25. This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." -568. and affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond *39 the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; expressly disclaimed that it was such a case, and did not even discuss the possibility that it was.) To dismiss this distinction as "superficial and formalistic," see post, at 47 (O'CONNOR, J., dissenting), is to misunderstand the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." These phrases are not merely hortatory. For example, cases such as and New affirm that a law is not "`proper for carrying into Execution the Commerce Clause'" "[w]hen [it] violates [a constitutional] principle of state sovereignty." ; see also New III The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, * foster and protect the commerce, but embraces those which prohibit it." See also Hipolite Egg v. United States, ; Lottery Case, To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances — both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S. C. 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market — and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.[3]*41 See ante, at 25-33. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for "medical" marijuana and the more general marijuana market. See ante, at 30, and n. 38. "To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution." Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation "inappropriate," — except to argue that the CSA regulates an area typically left to state regulation. See post, at 48, 51 (opinion of O'CONNOR, J.); post, at 66 (opinion of THOMAS, J.); Brief for Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress." National League of 8 ; see ; At bottom, respondents' *42 state-sovereignty argument reduces to the contention that federal regulation of the activities permitted by California's Compassionate Use Act is not sufficiently necessary to be "necessary and proper" to Congress's regulation of the interstate market. For the reasons given above and in the Court's opinion, I cannot agree. * * * I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation. See That is sufficient to authorize the application of the CSA to respondents.

Justice Scalia

majority

Reno v. American-Arab Anti-Discrimination Comm.

https://www.courtlistener.com/opinion/118264/reno-v-american-arab-anti-discrimination-comm/

https://www.courtlistener.com/api/rest/v3/clusters/118264/

1998-024

[†] Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress *473 passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, which contains a provision restricting judicial review of the Attorney General's "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." 8 U.S. C. § 1252(g) (1994 ed., Supp. III). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents' suit. I The Immigration and Naturalization Service (INS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The INS charged all eight under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who "advocate . . . world communism." See 8 U.S. C. §§ 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status.[1] See 8 U.S. C. §§ 1251(a)(2) and (a)(9) (1988 ed.). Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anticommunism provisions of the McCarran-Walter Act and seeking declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials in their personal and official capacities. The INS responded by dropping the advocacyof-communism *474 charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran-Walter Act, which authorized the deportation of aliens who were members of an organization advocating "the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers" and "the unlawful damage, injury, or destruction of property." See 8 U.S. C. §§ 1251(a)(6)(F)(ii)— (iii) (1982 ed.).[2] INS regional counsel William Odencrantz said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents' deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1053 (CA9 1995) (AADC I) . Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.[3] Since this suit seeking to prevent the initiation of deportation proceedings was filed—in 1987, during the administration of Attorney General Edwin Meese—it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87-7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d *475 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the INS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh's claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here. AADC I, supra, was the Ninth Circuit's first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General's argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the Immigration and Nationality Act (INA), 8 U.S. C. § 1105a, precluded review of such a claim until a deportation order issued. See 70 F.3d, at 1056-1057. The Ninth Circuit remanded the case to the District Court, which entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General's request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP. While the Attorney General's appeal of this last decision was pending, Congress passed IIRIRA which, inter alia, repealed the old judicial-review scheme set forth in § 1105a and instituted a new (and significantly more restrictive) one in 8 U.S. C. § 1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that § 1252(g) deprived them of jurisdiction over respondents' selective-enforcement claim. The District Court denied the motion, and the Attorney General's appeal from that denial *476 was consolidated with the appeal already pending in the Ninth Circuit. It is the judgment and opinion in that appeal which is before us here: 119 F.3d 1367 (CA9 1997). It affirmed the existence of jurisdiction under § 1252, see id., at 1374, and reaching the merits of the injunctions, again affirmed the District Court, id., at 1374-1376. The Attorney General's petition for rehearing en banc was denied over the dissent of three judges, 132 F.3d 531 (CA9 1997). The Attorney General sought our review, and we granted certiorari, 524 U.S. 903 (1998). II Before enactment of IIRIRA, judicial review of most administrative action under the INA was governed by 8 U.S. C. § 1105a, a special statutory-review provision directing that "the sole and exclusive procedure for . . . the judicial review of all final orders of deportation" shall be that set forth in the Hobbs Act, 28 U.S. C. § 2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see § 2342. Much of the Court of Appeals' analysis in AADC I was devoted to the question whether this pre-IIRIRA provision applied to selective-enforcement claims. Since neither the Immigration Judge nor the Board of Immigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC I, see 70 F.3d, at 1055), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the case to the agency, see 28 U.S. C. § 2347(c), or transfer it to a district court, see § 2347(b)(3), for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents' only means of obtaining factual development and thus judicial review of their selectiveenforcement *477 claims. Relying on our decision in Cheng Fan Kwok v. INS, 392 U.S. 206 (1968), it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U.S. C. § 1331, or the general jurisdictional provision of the INA, see 8 U.S. C. § 1329.[4] Whether we must delve further into the details of this issue depends upon whether, after the enactment of IIRIRA, § 1105a continues to apply to this case. On the surface of things, at least, it does not. Although the general rule set forth in § 309(c)(1) of IIRIRA is that the revised procedures for removing aliens, including the judicial-review procedures of § 1252, do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA's effective date, see note following 8 U.S. C. § 1101 (1994 ed., Supp. III),[5] § 306(c)(1) of IIRIRA directs that a single provision, § 1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." See note following 8 U.S. C. § 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows: "(g) Exclusive Jurisdiction "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction *478 to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." This provision seemingly governs here, depriving the federal courts of jurisdiction "[e]xcept as provided in this section." But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated § 1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as "a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final order of deportation filed in the court of appeals." Supplemental Brief for Appellants in No. 96-55929 (CA9), p. 2. Respondents have described it as applying to "most of what INS does." Corrected Supplemental Brief for Appellees in No. 96-55929 (CA9), p. 7. This broad understanding of § 1252(g), combined with IIRIRA's effective-date provisions, creates an interpretive anomaly. If the jurisdictionexcluding provision of § 1252(g) eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in § 1252(g) "[e]xcept as provided in this section" incorporates (as one would suppose) all the other jurisdiction-related provisions of § 1252, then § 309(c)(1) would be rendered a virtual nullity. To say that there is no jurisdiction in pending INS cases "except as" § 1252 provides jurisdiction is simply to say that § 1252's jurisdictional limitations apply to pending cases as well as future cases—which seems hardly what § 309(c)(1) is about. If, on the other hand, the phrase "[e]xcept as provided in this section" were (somehow) interpreted not to incorporate the other jurisdictional provisions of § 1252—if § 1252(g) stood alone, so to speak—judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order. *479 The Attorney General would have us avoid the horns of this dilemma by interpreting § 1252(g)'s phrase "[e]xcept as provided in this section" to mean "except as provided in § 1105a." Because § 1105a authorizes review of only final orders, respondents must, she says, wait until their administrative proceedings come to a close and then seek review in a court of appeals. (For reasons mentioned above, the Attorney General of course rejects the Ninth Circuit's position in AADC I that application of § 1105a would leave respondents without a judicial forum because evidence of selective prosecution cannot be introduced into the administrative record.) The obvious difficulty with the Attorney General's interpretation is that it is impossible to understand how the qualifier in § 1252(g), "[e]xcept as provided in this section" (emphasis added), can possibly mean "except as provided in § 1105a." And indeed the Attorney General makes no attempt to explain how this can be, except to observe that what she calls a "literal application" of the statute "would create an anomalous result." Brief for Petitioners 30, n. 15. Respondents note this deficiency, but offer an equally implausible means of avoiding the dilemma. Section 309(c)(3) allows the Attorney General to terminate pending deportation proceedings and reinitiate them under § 1252.[6] They argue that § 1252(g) applies only to those pending cases in which the Attorney General has made that election. That way, they claim, the phrase "[e]xcept as provided in this section" can, without producing an anomalous result, be allowed to refer (as it says) to all the rest of § 1252. But this approach collides head-on with § 306(c)'s prescription that § 1252(g) shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." See note following 8 U.S. C. § 1252 (1994 ed., Supp. III) (emphasis added). (Respondents argue *480 in the alternative, of course, that if the Attorney General is right and § 1105a does apply, AADC I is correct that their claims will be effectively unreviewable upon entry of a final order. For this reason, and because they say that habeas review, if still available after IIRIRA,[7] will come too late to remedy this First Amendment injury, respondents contend that we must construe § 1252(g) not to bar constitutional claims.) The Ninth Circuit, for its part, accepted the parties' broad reading of § 1252(g) and concluded, reasonably enough, that on that reading Congress could not have meant § 1252(g) to stand alone: "Divorced from all other jurisdictional provisions of IIRIRA, subsection (g) would have a more sweeping impact on cases filed before the statute's enactment than after that date. Without incorporating any exceptions, the provision appears to cut off federal jurisdiction over all deportation decisions. We do not think that Congress intended such an absurd result." 119 F.3d, at 1372. It recognized, however, the existence of the other horn of the dilemma ("that retroactive application of the entire amended version of 8 U.S. C. § 1252 would threaten to render meaningless section 306(c) of IIRIRA," ibid. ), and resolved the difficulty to its satisfaction by concluding that "at least some of the other provisions of section 1252" must be included in *481 subsection (g) "when it applies to pending cases." Ibid. (emphasis added). One of those provisions, it thought, must be subsection (f), entitled "Limit on Injunctive Relief," which reads as follows: "Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated." The Ninth Circuit found in this an affirmative grant of jurisdiction that covered the present case. The Attorney General argued that any such grant of jurisdiction would be limited (and rendered inapplicable to this case) by § 1252(b)(9), which provides: "Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section." The Ninth Circuit replied that, even if § 1252(b)(9) were one of those provisions incorporated into the transitional application of § 1252(g), it could not preclude this suit for the same reason AADC I had held that § 1105a could not do so— namely, the Court of Appeals' lack of access to factual findings regarding selective enforcement. Even respondents scarcely try to defend the Ninth Circuit's reading of § 1252(f) as a jurisdictional grant. By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this *482 ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear. We think the seeming anomaly that prompted the parties' strained readings of § 1252(g)—and that at least accompanied the Court of Appeals' strained reading—is a mirage. The parties' interpretive acrobatics flow from the belief that § 306(c)(1) cannot be read to envision a straightforward application of the "[e]xcept as provided in this section" portion of § 1252(g), since that would produce in all pending INS cases jurisdictional restrictions identical to those that were contained in IIRIRA anyway. That belief, however, rests on the unexamined assumption that § 1252(g) covers the universe of deportation claims—that it is a sort of "zipper" clause that says "no judicial review in deportation cases unless this section provides judicial review." In fact, what § 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders." (Emphasis added.) There are of course many other decisions or actions that may be part of the deportation process—such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order. It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting. We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation is demonstrated *483 by the text of § 1252(b)(9), which stands in stark contrast to § 1252(g). It could be argued, perhaps, that § 1252(g) is redundant if it channels judicial review of only some decisions and actions, since § 1252(b)(9) channels judicial review of all of them anyway. But that is not so, since only § 1252(g), and not § 1252(b)(9) (except to the extent it is incorporated within § 1252(g)), applies to what § 309(c)(1) calls "transitional cases," that is, cases pending on the effective date of IIRIRA. That alone justifies its existence. It performs the function of categorically excluding from non-final-order judicial review—even as to transitional cases otherwise governed by § 1105a rather than the unmistakable "zipper" clause of § 1252(b)(9)—certain specified decisions and actions of the INS. In addition, even after all the transitional cases have passed through the system, § 1252(g) as we interpret it serves the continuing function of making it clear that those specified decisions and actions, which (as we shall discuss in detail below) some courts had held not to be included within the non-final-order review prohibition of § 1105a, are covered by the "zipper" clause of § 1252(b)(9). It is rather the Court of Appeals' and the parties' interpretation which renders § 1252(g) entirely redundant, adding to one "zipper" clause that does not apply to transitional cases, another one of equal scope that does apply to transitional cases. That makes it entirely inexplicable why the transitional provisions of § 306(c) refer to § 1252(g) instead of § 1252(b)(9)—and why § 1252(g) exists at all. There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General's discrete acts of "commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders"—which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a *484 regular practice (which had come to be known as "deferred action") of exercising that discretion for humanitarian reasons or simply for its own convenience.[8] As one treatise describes it: "To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated." 6 C. Gordon, S. Mailman, & S. YaleLoehr, Immigration Law and Procedure § 72.03[2][h] (1998). See also Johns v. Department of Justice, 653 F.2d 884, 890— 892 (CA5 1981). Since no generous act goes unpunished, however, the INS's exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it. "[I]n each such instance, the determination to withhold or terminate deportation is confined to administrative *485 discretion. .. . Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion." Gordon, Mailman, & YaleLoehr, supra, § 72.03[2][a] (footnotes omitted). Such litigation was possible because courts read § 1105a's prescription that the Hobbs Act shall be "the sole and exclusive procedure for the judicial review of all final orders of deportation" to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review. See, e. g., Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) (review of refusal to stay deportation); Ramallo v. Reno, Civ. No. 95-01851 (D. D. C., July 23, 1996) (review of execution of removal order), described in and rev'd on other grounds, 114 F.3d 1210 (CADC 1997); AADC I, 70 F.3d 1045 (CA9 1995) (review of commencement of deportation proceedings); Lennon v. INS, 527 F.2d 187, 195 (CA2 1975) (same, dicta). Section 1252(g) seems clearly designed to give some measure of protection to "no deferred action" decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.[9] *486 Of course many provisions of IIRIRA are aimed at protecting the Executive's discretion from the courts—indeed, that can fairly be said to be the theme of the legislation. See, e. g., 8 U.S. C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States); § 1252(a)(2)(B) (barring review of denials of discretionary relief authorized by various statutory provisions); § 1252(a)(2)(C) (barring review of final removal orders *487 against criminal aliens); § 1252(b)(4)(D) (limiting review of asylum determinations for resident aliens). It is entirely understandable, however, why Congress would want only the discretion-protecting provision of § 1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings. Our narrow reading of § 1252(g) makes sense of the statutory scheme as a whole, for it resolves the supposed tension between § 306(c)(1) and § 309(c)(1). In cases to which § 1252(g) applies, the rest of § 1252 is incorporated through the "[e]xcept as provided in this section" clause. This incorporation does not swallow § 309(c)(1)'s general rule that §§ 1252(a)—(f) do not apply to pending cases, for § 1252(g) applies to only a limited subset of deportation claims. Yet it is also faithful to § 306(c)(1)'s command that § 1252(g) be applied "without limitation" (i. e., including the "[e]xcept as provided" clause) to "claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." Respondents' challenge to the Attorney General's decision to "commence proceedings" against them falls squarely within § 1252(g)—indeed, as we have discussed, the language seems to have been crafted with such a challenge precisely in mind—and nothing elsewhere in § 1252 provides for jurisdiction. Cf. § 1252(a)(1) (review of final orders); § 1252(e)(2) (limited habeas review for excluded aliens); § 1252(e)(3)(A) (limited review of statutes and regulations pertaining to the exclusion of aliens). As we concluded earlier, § 1252(f) plainly serves as a limit on injunctive relief rather than a jurisdictional grant. III Finally, we must address respondents' contention that, since the lack of prior factual development for their claim will render the § 1252(a)(1) exception to § 1252(g) unavailing; since habeas relief will also be unavailable; and since even if *488 one or both were available they would come too late to prevent the "chilling effect" upon their First Amendment rights; the doctrine of constitutional doubt requires us to interpret § 1252(g) in such fashion as to permit immediate review of their selective-enforcement claims. We do not believe that the doctrine of constitutional doubt has any application here. As a general matter—and assuredly in the context of claims such as those put forward in the present case—an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.[10] *489 Even in the criminal-law field, a selective prosecution claim is a rara avis. Because such claims invade a special province of the Executive—its prosecutorial discretion—we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce "clear evidence" displacing the presumption that a prosecutor has acted lawfully. United States v. Armstrong, 517 U.S. 456, 463-465 (1996). We have said: "This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute *490 is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute." Wayte v. United States, 470 U.S. 598, 607— 608 (1985). These concerns are greatly magnified in the deportation context. Regarding, for example, the potential for delay: Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal's receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law. Postponing justifiable deportation (in the hope that the alien's status will change—by, for example, marriage to an American citizen—or simply with the object of extending the alien's unlawful stay) is often the principal object of resistance to a deportation proceeding, and the additional obstacle of selective-enforcement suits could leave the INS hard pressed to enforce routine status requirements. And as for "chill[ing] law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry": What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and techniques, *491 but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its "real" reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country by focusing on that country's nationals—and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Moreover, the consideration on the other side of the ledger in deportation cases—the interest of the target in avoiding "selective" treatment—is less compelling than in criminal prosecutions. While the consequences of deportation may assuredly be grave, they are not imposed as a punishment, see Carlson v. Landon, 342 U.S. 524, 537 (1952). In many cases (for six of the eight aliens here) deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing. To resolve the present controversy, we need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here. When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the *492 Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity. * * * Because 8 U.S. C. § 1252(g) deprives the federal courts of jurisdiction over respondents' claims, we vacate the judgment of the Ninth Circuit and remand with instructions for it to vacate the judgment of the District Court. It is so ordered. Justice Ginsburg, with whom Justice Breyer joins as to Part I, concurring in part and concurring in the judgment.

[†] Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress *473 passed the llegal mmigration Reform and mmigrant Responsibility Act of 1996 (RRA), -546, which contains a provision restricting judicial review of the Attorney General's "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." 8 U.S. C. 1252(g) (1994 ed., Supp. ). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents' suit. The mmigration and Naturalization Service (NS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The NS charged all eight under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who "advocate world communism." See 8 U.S. C. 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). n addition, the NS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status.[1] See 8 U.S. C. 1251(a)(2) and (a)(9) (1988 ed.). Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anticommunism provisions of the McCarran-Walter Act and seeking declaratory and injunctive relief against the Attorney General, the NS, and various immigration officials in their personal and official capacities. The NS responded by dropping the advocacyof-communism *474 charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran-Walter Act, which authorized the deportation of aliens who were members of an organization advocating "the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers" and "the unlawful damage, injury, or destruction of property." See 8 U.S. C. 1251(a)(6)(F)(ii)— (iii) (1982 ed.).[2] NS regional counsel William Odencrantz said at a press conference that the charges had been changed for tactical reasons but the NS was still seeking respondents' deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Respondents amended their complaint to include an allegation that the NS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.[3] Since this suit seeking to prevent the initiation of deportation proceedings was filed—in 1987, during the administration of Attorney General Edwin Meese—it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87-7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d *475 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the NS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh's claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here. AADC was the Ninth Circuit's first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General's argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the mmigration and Nationality Act (NA), 8 U.S. C. 1105a, precluded review of such a claim until a deportation order issued. See -1057. The Ninth Circuit remanded the case to the District Court, which entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General's request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP. While the Attorney General's appeal of this last decision was pending, Congress passed RRA which, inter alia, repealed the old judicial-review scheme set forth in 1105a and instituted a new (and significantly more restrictive) one in 8 U.S. C. 1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that 1252(g) deprived them of jurisdiction over respondents' selective-enforcement claim. The District Court denied the motion, and the Attorney General's appeal from that denial *476 was consolidated with the appeal already pending in the Ninth Circuit. t is the judgment and opinion in that appeal which is before us here: t affirmed the existence of jurisdiction under 1252, see and reaching the merits of the injunctions, again affirmed the District Court, -1376. The Attorney General's petition for rehearing en banc was denied over the dissent of three judges, The Attorney General sought our review, and we granted certiorari, Before enactment of RRA, judicial review of most administrative action under the NA was governed by 8 U.S. C. 1105a, a special statutory-review provision directing that "the sole and exclusive procedure for the judicial review of all final orders of deportation" shall be that set forth in the Hobbs Act, 28 U.S. C. 2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see 2342. Much of the Court of Appeals' analysis in AADC was devoted to the question whether this pre-RRA provision applied to selective-enforcement claims. Since neither the mmigration Judge nor the Board of mmigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC see ), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the case to the agency, see 28 U.S. C. 2347(c), or transfer it to a district court, see 2347(b)(3), for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents' only means of obtaining factual development and thus judicial review of their selectiveenforcement *477 claims. Relying on our decision in Cheng Fan Kwok v. NS, it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U.S. C. 1331, or the general jurisdictional provision of the NA, see 8 U.S. C. 1329.[4] Whether we must delve further into the details of this issue depends upon whether, after the enactment of RRA, 1105a continues to apply to this case. On the surface of things, at least, it does not. Although the general rule set forth in 309(c)(1) of RRA is that the revised procedures for removing aliens, including the judicial-review procedures of 1252, do not apply to aliens who were already in either exclusion or deportation proceedings on RRA's effective date, see note following 8 U.S. C. 1101 (1994 ed., Supp. ),[5] 306(c)(1) of RRA directs that a single provision, 1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." See note following 8 U.S. C. 1252 (1994 ed., Supp. ). Section 1252(g) reads as follows: "(g) Exclusive Jurisdiction "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction *478 to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." This provision seemingly governs here, depriving the federal courts of jurisdiction "[e]xcept as provided in this section." But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated 1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as "a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final order of deportation filed in the court of appeals." Supplemental Brief for Appellants in No. 96-55929 (CA9), p. 2. Respondents have described it as applying to "most of what NS does." Corrected Supplemental Brief for Appellees in No. 96-55929 (CA9), p. 7. This broad understanding of 1252(g), combined with RRA's effective-date provisions, creates an interpretive anomaly. f the jurisdictionexcluding provision of 1252(g) eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in 1252(g) "[e]xcept as provided in this section" incorporates (as one would suppose) all the other jurisdiction-related provisions of 1252, then 309(c)(1) would be rendered a virtual nullity. To say that there is no jurisdiction in pending NS cases "except as" 1252 provides jurisdiction is simply to say that 1252's jurisdictional limitations apply to pending cases as well as future cases—which seems hardly what 309(c)(1) is about. f, on the other hand, the phrase "[e]xcept as provided in this section" were (somehow) interpreted not to incorporate the other jurisdictional provisions of 1252—if 1252(g) stood alone, so to speak—judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order. *479 The Attorney General would have us avoid the horns of this dilemma by interpreting 1252(g)'s phrase "[e]xcept as provided in this section" to mean "except as provided in 1105a." Because 1105a authorizes review of only final orders, respondents must, she says, wait until their administrative proceedings come to a close and then seek review in a court of appeals. (For reasons mentioned above, the Attorney General of course rejects the Ninth Circuit's position in AADC that application of 1105a would leave respondents without a judicial forum because evidence of selective prosecution cannot be introduced into the administrative record.) The obvious difficulty with the Attorney General's interpretation is that it is impossible to understand how the qualifier in 1252(g), "[e]xcept as provided in this section" can possibly mean "except as provided in 1105a." And indeed the Attorney General makes no attempt to explain how this can be, except to observe that what she calls a "literal application" of the statute "would create an anomalous result." Brief for Petitioners 30, n. 15. Respondents note this deficiency, but offer an equally implausible means of avoiding the dilemma. Section 309(c)(3) allows the Attorney General to terminate pending deportation proceedings and reinitiate them under 1252.[6] They argue that 1252(g) applies only to those pending cases in which the Attorney General has made that election. That way, they claim, the phrase "[e]xcept as provided in this section" can, without producing an anomalous result, be allowed to refer (as it says) to all the rest of 1252. But this approach collides head-on with 306(c)'s prescription that 1252(g) shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." See note following 8 U.S. C. 1252 (1994 ed., Supp. ) (Respondents argue *480 in the alternative, of course, that if the Attorney General is right and 1105a does apply, AADC is correct that their claims will be effectively unreviewable upon entry of a final order. For this reason, and because they say that habeas review, if still available after RRA,[7] will come too late to remedy this First Amendment injury, respondents contend that we must construe 1252(g) not to bar constitutional claims.) The Ninth Circuit, for its part, accepted the parties' broad reading of 1252(g) and concluded, reasonably enough, that on that reading Congress could not have meant 1252(g) to stand alone: "Divorced from all other jurisdictional provisions of RRA, subsection (g) would have a more sweeping impact on cases filed before the statute's enactment than after that date. Without incorporating any exceptions, the provision appears to cut off federal jurisdiction over all deportation decisions. We do not think that Congress intended such an absurd result." t recognized, however, the existence of the other horn of the dilemma ("that retroactive application of the entire amended version of 8 U.S. C. 1252 would threaten to render meaningless section 306(c) of RRA," ), and resolved the difficulty to its satisfaction by concluding that "at least some of the other provisions of section 1252" must be included in *481 subsection (g) "when it applies to pending cases." bid. One of those provisions, it thought, must be subsection (f), entitled "Limit on njunctive Relief," which reads as follows: "Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title as amended by [RRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated." The Ninth Circuit found in this an affirmative grant of jurisdiction that covered the present case. The Attorney General argued that any such grant of jurisdiction would be limited (and rendered inapplicable to this case) by 1252(b)(9), which provides: "Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section." The Ninth Circuit replied that, even if 1252(b)(9) were one of those provisions incorporated into the transitional application of 1252(g), it could not preclude this suit for the same reason AADC had held that 1105a could not do so— namely, the Court of Appeals' lack of access to factual findings regarding selective enforcement. Even respondents scarcely try to defend the Ninth Circuit's reading of 1252(f) as a jurisdictional grant. By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. t prohibits federal courts from granting classwide injunctive relief against the operation of 1221-1231, but specifies that this *482 ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear. We think the seeming anomaly that prompted the parties' strained readings of 1252(g)—and that at least accompanied the Court of Appeals' strained reading—is a mirage. The parties' interpretive acrobatics flow from the belief that 306(c)(1) cannot be read to envision a straightforward application of the "[e]xcept as provided in this section" portion of 1252(g), since that would produce in all pending NS cases jurisdictional restrictions identical to those that were contained in RRA anyway. That belief, however, rests on the unexamined assumption that 1252(g) covers the universe of deportation claims—that it is a sort of "zipper" clause that says "no judicial review in deportation cases unless this section provides judicial review." n fact, what 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders." (Emphasis added.) There are of course many other decisions or actions that may be part of the deportation process—such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order. t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting. We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation; and that those who enacted RRA were familiar with the normal manner of imposing such a limitation is demonstrated *483 by the text of 1252(b)(9), which stands in stark contrast to 1252(g). t could be argued, perhaps, that 1252(g) is redundant if it channels judicial review of only some decisions and actions, since 1252(b)(9) channels judicial review of all of them anyway. But that is not so, since only 1252(g), and not 1252(b)(9) (except to the extent it is incorporated within 1252(g)), applies to what 309(c)(1) calls "transitional cases," that is, cases pending on the effective date of RRA. That alone justifies its existence. t performs the function of categorically excluding from non-final-order judicial review—even as to transitional cases otherwise governed by 1105a rather than the unmistakable "zipper" clause of 1252(b)(9)—certain specified decisions and actions of the NS. n addition, even after all the transitional cases have passed through the system, 1252(g) as we interpret it serves the continuing function of making it clear that those specified decisions and actions, which (as we shall discuss in detail below) some courts had held not to be included within the non-final-order review prohibition of 1105a, are covered by the "zipper" clause of 1252(b)(9). t is rather the Court of Appeals' and the parties' interpretation which renders 1252(g) entirely redundant, adding to one "zipper" clause that does not apply to transitional cases, another one of equal scope that does apply to transitional cases. That makes it entirely inexplicable why the transitional provisions of 306(c) refer to 1252(g) instead of 1252(b)(9)—and why 1252(g) exists at all. There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General's discrete acts of "commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders"—which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time RRA was enacted the NS had been engaging in a *484 regular practice (which had come to be known as "deferred action") of exercising that discretion for humanitarian reasons or simply for its own convenience.[8] As one treatise describes it: "To ameliorate a harsh and unjust outcome, the NS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated." 6 C. Gordon, S. Mailman, & S. YaleLoehr, mmigration Law and Procedure 72.03[2][h] See also Since no generous act goes unpunished, however, the NS's exercise of this discretion opened the door to litigation in instances where the NS chose not to exercise it. "[]n each such instance, the determination to withhold or terminate deportation is confined to administrative *485 discretion. Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion." Gordon, Mailman, & YaleLoehr, 72.03[2][a] (footnotes omitted). Such litigation was possible because courts read 1105a's prescription that the Hobbs Act shall be "the sole and exclusive procedure for the judicial review of all final orders of deportation" to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review. See, e. g., Cheng Fan Kwok v. NS, ; Ramallo v. Reno, Civ. No. 95-01851 (review of execution of removal order), described in and rev'd on other grounds, ; AADC ; Lennon v. NS, Section 1252(g) seems clearly designed to give some measure of protection to "no deferred action" decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.[9] *486 Of course many provisions of RRA are aimed at protecting the Executive's discretion from the courts—indeed, that can fairly be said to be the theme of the legislation. See, e. g., 8 U.S. C. 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States); 1252(a)(2)(B) (barring review of denials of discretionary relief authorized by various statutory provisions); 1252(a)(2)(C) (barring review of final removal orders *487 against criminal aliens); 1252(b)(4)(D) (limiting review of asylum determinations for resident aliens). t is entirely understandable, however, why Congress would want only the discretion-protecting provision of 1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings. Our narrow reading of 1252(g) makes sense of the statutory scheme as a whole, for it resolves the supposed tension between 306(c)(1) and 309(c)(1). n cases to which 1252(g) applies, the rest of 1252 is incorporated through the "[e]xcept as provided in this section" clause. This incorporation does not swallow 309(c)(1)'s general rule that 1252(a)—(f) do not apply to pending cases, for 1252(g) applies to only a limited subset of deportation claims. Yet it is also faithful to 306(c)(1)'s command that 1252(g) be applied "without limitation" (i. e., including the "[e]xcept as provided" clause) to "claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." Respondents' challenge to the Attorney General's decision to "commence proceedings" against them falls squarely within 1252(g)—indeed, as we have discussed, the language seems to have been crafted with such a challenge precisely in mind—and nothing elsewhere in 1252 provides for jurisdiction. Cf. 1252(a)(1) (review of final orders); 1252(e)(2) (limited habeas review for excluded aliens); 1252(e)(3)(A) (limited review of statutes and regulations pertaining to the exclusion of aliens). As we concluded earlier, 1252(f) plainly serves as a limit on injunctive relief rather than a jurisdictional grant. Finally, we must address respondents' contention that, since the lack of prior factual development for their claim will render the 1252(a)(1) exception to 1252(g) unavailing; since habeas relief will also be unavailable; and since even if *488 one or both were available they would come too late to prevent the "chilling effect" upon their First Amendment rights; the doctrine of constitutional doubt requires us to interpret 1252(g) in such fashion as to permit immediate review of their selective-enforcement claims. We do not believe that the doctrine of constitutional doubt has any application here. As a general matter—and assuredly in the context of claims such as those put forward in the present case—an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.[10] *489 Even in the criminal-law field, a selective prosecution claim is a rara avis. Because such claims invade a special province of the Executive—its prosecutorial discretion—we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce "clear evidence" displacing the presumption that a prosecutor has acted lawfully. United We have said: "This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute *490 is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute." These concerns are greatly magnified in the deportation context. Regarding, for example, the potential for delay: Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal's receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law. Postponing justifiable deportation (in the hope that the alien's status will change—by, for example, marriage to an American citizen—or simply with the object of extending the alien's unlawful stay) is often the principal object of resistance to a deportation proceeding, and the additional obstacle of selective-enforcement suits could leave the NS hard pressed to enforce routine status requirements. And as for "chill[ing] law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry": What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and techniques, *491 but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its "real" reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country by focusing on that country's nationals—and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Moreover, the consideration on the other side of the ledger in deportation cases—the interest of the target in avoiding "selective" treatment—is less compelling than in criminal prosecutions. While the consequences of deportation may assuredly be grave, they are not imposed as a punishment, see (2). n many cases (for six of the eight aliens here) deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing. To resolve the present controversy, we need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here. When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the *492 Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity. * * * Because 8 U.S. C. 1252(g) deprives the federal courts of jurisdiction over respondents' claims, we vacate the judgment of the Ninth Circuit and remand with instructions for it to vacate the judgment of the District Court. t is so ordered. Justice Ginsburg, with whom Justice Breyer joins as to Part concurring in part and concurring in the judgment.

Justice Rehnquist

dissenting

Memorial Hospital v. Maricopa County

https://www.courtlistener.com/opinion/108971/memorial-hospital-v-maricopa-county/

https://www.courtlistener.com/api/rest/v3/clusters/108971/

1973-058

I The State of Arizona provides free medical care for indigents. Confronted, in common with its 49 sister States, with the assault of spiraling health and welfare costs upon limited state resources, it has felt bound to require that recipients meet three standards of eligibility.[1] First, they must be indigent, unemployable, or unable to provide their own care. Second, they must be residents of the county in which they seek aid. Third, they must have maintained their residence for a period of one year. These standards, however, apply only to persons seeking nonemergency aid. An exception is specifically provided for "emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb . . . ." Appellant Evaro moved from New Mexico to Arizona in June 1971, suffering from a "chronic asthmatic and bronchial illness." In July 1971 he experienced a respiratory attack, and obtained treatment at the facilities of appellant Memorial Hospital, a privately operated *278 institution. The hospital sought to recover its expenses from appellee Maricopa County under the provisions of Ariz. Rev. Stat. Ann. § 11-297A (Supp. 1973-1974), asserting that Evaro was entitled to receive county care. Since he did not satisfy the eligibility requirements discussed above,[2] appellee declined to assume responsibility for his care, and this suit was then instituted in the State Superior Court. Appellants did not, and could not, claim that there is a constitutional right to nonemergency medical care at state or county expense or a constitutional right to reimbursement for care extended by a private hospital.[3] They asserted, however, that the state legislature, having decided to give free care to certain classes of persons, must give that care to Evaro as well. The Court upholds that claim, holding that the Arizona eligibility requirements burdened Evaro's "right to travel." Unlike many traditional government services, such as police or fire protection, the provision of health care has commonly been undertaken by private facilities and personnel. But as strains on private services become greater, and the costs of obtaining care increase, federal, state, and local governments have been pressed to assume a larger role. Reasonably enough, it seems to me, those governments which now find themselves in the hospital business seek to operate that business primarily for those *279 persons dependent on the financing locality both by association and by need. Appellants in this case nevertheless argue that the State's efforts, admirable though they may be, are simply not impressive enough. But others excluded by eligibility requirements certainly could make similar protests. Maricopa County residents of many years, paying taxes to both construct and support public hospital facilities, may be ineligible for care because their incomes are slightly above the marginal level for inclusion. These people have been excluded by the State, not because their claim on limited public resources is without merit, but because it has been deemed less meritorious than the claims of those in even greater need. Given a finite amount of resources, Arizona after today's decision may well conclude that its indigency threshold should be elevated since its counties must provide for out-of-state migrants as well as for residents of longer standing. These more stringent need requirements would then deny care to additional persons who until now would have qualified for aid. Those presently excluded because marginally above the State's indigency standards, those who may be excluded in the future because of more stringent indigency requirements necessitated by today's decision, and appellant Evaro, all have a plausible claim to government-supported medical care. The choice between them necessitated by a finite amount of resources is a classic example of the determination of priorities to be accorded conflicting claims, and would in the recent past have been thought to be a matter particularly within the competence of the state legislature to decide. As this Court stated in Dandridge v. Williams, 397 U.S. 471, 487 (1970), "the Constitution does not empower this Court to second-guess state officials charged with the difficult *280 responsibility of allocating limited public welfare funds among the myriad of potential recipients." The Court holds, however, that the State was barred from making the choice it made because of the burden its choice placed upon Evaro's "right to travel." Although the Court's definition of this "right" is hardly precise, the Court does state: "[T]he right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents." This rationale merits further attention. II The right to travel throughout the Nation has been recognized for over a century in the decisions of this Court.[4] See Crandall v. Nevada, 6 Wall. 35 (1868). But the concept of that right has not been static. To see how distant a cousin the right to travel enunciated in this case is to the right declared by the Court in Crandall, reference need only be made to the language of Mr. Justice Miller, speaking for the Court: "But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are *281 conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it." Id., at 44. The Court in Crandall established no right to free benefits from every State through which the traveler might pass, but more modestly held that the State could not use its taxing power to impede travel across its borders.[5] Later cases also defined this right to travel quite conservatively. For example, in Williams v. Fears, 179 U.S. 270 (1900), the Court upheld a Georgia statute taxing "emigrant agents"—persons hiring labor for work outside the State—although agents hiring for local work went untaxed. The Court recognized that a right to travel existed, stating: "Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution." Id., at 274. The Court went on, however, to decide that the statute, despite the added cost it assessed against exported labor, affected freedom of egress "only incidentally and remotely." Ibid.[6] *282 The leading earlier case, Edwards v. California, 314 U.S. 160 (1941), provides equally little support for the Court's expansive holding here. In Edwards the Court invalidated a California statute which subjected to criminal penalties any person "that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person." Id., at 171. Five members of the Court found the statute unconstitutional under the Commerce Clause, finding in the Clause a "prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders." Id., at 173. Four concurring Justices found a better justification for the result in the Fourteenth Amendment's protection of the "privileges of national citizenship."[7] Regardless of the right's precise source and definition, it is clear that the statute invalidated in Edwards was specifically designed to, and would, deter indigent persons from entering the State of California. The imposition of criminal penalties on all persons assisting the entry of an indigent served to block ingress as surely as if the State has posted guards at the border to turn indigents away. It made no difference to the operation of the statute that the indigent, once inside the State, would be supported by federal payments.[8] Furthermore, *283 the statute did not require that the indigent intend to take up continuous residence within the State. The statute was not therefore an incidental or remote barrier to migration, but was in fact an effective and purposeful attempt to insulate the State from indigents. The statute in the present case raises no comparable barrier. Admittedly, some indigent persons desiring to reside in Arizona may choose to weigh the possible detriment of providing their own nonemergency health care during the first year of their residence against the total benefits to be gained from continuing location within the State, but their mere entry into the State does not invoke criminal penalties. To the contrary, indigents are free to live within the State, to receive welfare benefits necessary for food and shelter,[9] and to receive free emergency medical care if needed. Furthermore, once the indigent has settled within a county for a year, he becomes eligible for full medical care at county expense. To say, therefore, that Arizona's treatment of indigents compares with California's treatment during the 1930's would border on the frivolous. Since those older cases discussing the right to travel are unhelpful to Evaro's cause here, reliance must be placed elsewhere. A careful reading of the Court's opinion discloses that the decision rests almost entirely on two cases of recent vintage: Shapiro v. Thompson, 394 U.S. 618 (1969), and Dunn v. Blumstein, 405 U.S. 330 (1972). In Shapiro the Court struck down statutes requiring one year's residence prior to receiving welfare benefits. In Dunn the Court struck down a statute requiring a year's residence before receiving the right to vote. In placing reliance on these two cases, the Court *284 must necessarily distinguish or discredit recent cases of this Court upholding statutes requiring a year's residence for lower in-state tuition.[10] The important question for this purpose, according to the Court's analysis, is whether a classification " `operates to penalize those persons . . . who have exercised their constitutional right of interstate migration.' " (Emphasis in Court's opinion.) Since the Court concedes that "some `waiting-period[s]. . . may not be penalties,' " ante, at 258-259, one would expect to learn from the opinion how to distinguish a waiting period which is a penalty from one which is not. Any expense imposed on citizens crossing state lines but not imposed on those staying put could theoretically be deemed a penalty on travel; the toll exacted from persons crossing from Delaware to New Jersey by the Delaware Memorial Bridge is a "penalty" on interstate travel in the most literal sense of all. But such charges,[11] as well as other fees for use of transportation facilities such as taxes on airport users,[12] have been upheld by this Court against attacks based upon the right to travel. It seems to me that the line to be derived from our prior cases is that some financial impositions on interstate travelers have such indirect or inconsequential impact on travel that they simply do not constitute the type of direct purposeful barriers struck down in Edwards and Shapiro. Where the impact is that remote, a State can reasonably require that the citizen bear some proportion of the State's cost in its facilities. I would think that this standard is not only supported by this Court's decisions, but would be *285 eminently sensible and workable. But the Court not only rejects this approach, it leaves us entirely without guidance as to the proper standard to be applied. The Court instead resorts to ipse dixit, declaring rather than demonstrating that the right to nonemergency medical care is within the class of rights protected by Shapiro and Dunn: "Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least clear that medical care is as much `a basic necessity of life' to an indigent as welfare assistance. And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. See, e. g., Shapiro, supra; Goldberg v. Kelly, 397 U.S. 254, 264 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340-342 (1969)." Ante, at 259. (Emphasis added; footnotes omitted.) However clear this conclusion may be to the majority, it is certainly not clear to me. The solicitude which the Court has shown in cases involving the right to vote,[13] and the virtual denial of entry inherent in denial of welfare benefits—"the very means by which to live," Goldberg v. Kelly, 397 U.S. 254, 264 (1970)—ought not be so casually extended to the alleged deprivation here. Rather, the Court should examine, as it has done in the past, whether the challenged requirement erects a real and purposeful barrier to movement, or the threat of such a barrier, or whether the effects on travel, viewed realistically, are merely incidental and remote. As the above discussion has shown, the barrier here is hardly *286 a counterpart to the barriers condemned in earlier cases. That being so, the Court should observe its traditional respect for the State's allocation of its limited financial resources rather than unjustifiably imposing its own preferences. III The Court, in its examination of the proffered state interests, categorically rejects the contention that those who have resided in the county for a fixed period of time may have a greater stake in community facilities than the newly arrived. But this rejection is accomplished more by fiat than by reason. One of the principal factual distinctions between Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), aff'd, 401 U.S. 985 (1971), and Vlandis v. Kline, 412 U.S. 441 (1973), both of which upheld durational residence requirements for in-state university tuition,[14] and Shapiro, which struck them down for welfare recipients, is the nature of the aid which the State or county provides. Welfare benefits, whether in cash or in kind, are commonly funded from current tax revenues, which may well be supported by the very newest arrival as well as by the longtime resident. But universities and hospitals, although demanding operating support from current revenues, require extensive capital facilities which cannot possibly be funded out of current tax revenues. Thus, entirely apart from the majority's conception of whether nonemergency health care is more or less important than continued education, *287 the interest of longer established residents in capital facilities and their greater financial contribution to the construction of such facilities seems indisputable.[15] Other interests advanced by the State to support its statutory eligibility criteria are also rejected virtually out of hand by the Court. The protection of the county economies is dismissed with the statement that "[t]he conservation of the taxpayers' purse is simply not a sufficient state interest . . . ."[16] The Court points out that the cost of care, if not borne by the Government, may be borne by private hospitals such as appellant Memorial Hospital. While this observation is doubtless true in large part, and is bound to present a problem to any private hospital, it does not seem to me that it thus becomes a constitutional determinant. The Court also observes that the State may in fact save money by providing nonemergency medical care rather than waiting for deterioration of an illness. However valuable a qualified cost analysis might be to legislators drafting eligibility requirements, and however little this speculation may bear on Evaro's condition (which the record does not indicate to have been a deteriorating illness), this sort of judgment has traditionally been confided to legislatures, rather than to courts charged with determining constitutional questions. The Court likewise rejects all arguments based on *288 administrative objectives. Refusing to accept the assertion that a one-year waiting period is a "convenient rule of thumb to determine bona fide residence," the majority simply suggests its own alternatives. Similar analysis is applied in rejecting the appellees' argument based on the potential for fraud. The Court's declaration that an indigent applicant "intent on committing fraud, could as easily swear to having been a resident of the county for the preceding year as to being one currently" ignores the obvious fact that fabricating presence in the State for a year is surely more difficult than fabricating only a present intention to remain. The legal question in this case is simply whether the State of Arizona has acted arbitrarily in determining that access to local hospital facilities for nonemergency medical care should be denied to persons until they have established residence for one year. The impediment which this quite rational determination has placed on appellant Evaro's "right to travel" is so remote as to be negligible: so far as the record indicates Evaro moved from New Mexico to Arizona three years ago and has remained ever since. The eligibility requirement has not the slightest resemblance to the actual barriers to the right of free ingress and egress protected by the Constitution, and struck down in cases such as Crandall and Edwards. And, unlike Shapiro, it does not involve an urgent need for the necessities of life or a benefit funded from current revenues to which the claimant may well have contributed. It is a substantial broadening of, and departure from, all of these holdings, all the more remarkable for the lack of explanation which accompanies the result. Since I can subscribe neither to the method nor the result, I dissent.

I The State of Arizona provides free medical care for indigents. Confronted, in common with its 49 sister States, with the assault of spiraling health and welfare costs upon limited state resources, it has felt bound to require that recipients meet three standards of eligibility.[1] First, they must be indigent, unemployable, or unable to provide their own care. Second, they must be residents of the county in which they seek aid. Third, they must have maintained their residence for a period of one year. These standards, however, apply only to persons seeking nonemergency aid. An exception is specifically provided for "emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb" Appellant Evaro moved from New Mexico to Arizona in June 1971, suffering from a "chronic asthmatic and bronchial illness." In July 1971 he experienced a respiratory attack, and obtained treatment at the facilities of appellant Memorial Hospital, a privately operated *278 institution. The hospital sought to recover its expenses from appellee Maricopa County under the provisions of -297A (Supp. 1973-1974), asserting that Evaro was entitled to receive county care. Since he did not satisfy the eligibility requirements discussed above,[2] appellee declined to assume responsibility for his care, and this suit was then instituted in the State Superior Court. Appellants did not, and could not, claim that there is a constitutional right to nonemergency medical care at state or county expense or a constitutional right to reimbursement for care extended by a private hospital.[3] They asserted, however, that the state legislature, having decided to give free care to certain classes of persons, must give that care to Evaro as well. The Court upholds that claim, holding that the Arizona eligibility requirements burdened Evaro's "right to travel." Unlike many traditional government services, such as police or fire protection, the provision of health care has commonly been undertaken by private facilities and personnel. But as strains on private services become greater, and the costs of obtaining care increase, federal, state, and local governments have been pressed to assume a larger role. Reasonably enough, it seems to me, those governments which now find themselves in the hospital business seek to operate that business primarily for those *279 persons dependent on the financing locality both by association and by need. Appellants in this case nevertheless argue that the State's efforts, admirable though they may be, are simply not impressive enough. But others excluded by eligibility requirements certainly could make similar protests. Maricopa County residents of many years, paying taxes to both construct and support public hospital facilities, may be ineligible for care because their incomes are slightly above the marginal level for inclusion. These people have been excluded by the State, not because their claim on limited public resources is without merit, but because it has been deemed less meritorious than the claims of those in even greater need. Given a finite amount of resources, Arizona after today's decision may well conclude that its indigency threshold should be elevated since its counties must provide for out-of-state migrants as well as for residents of longer standing. These more stringent need requirements would then deny care to additional persons who until now would have qualified for aid. Those presently excluded because marginally above the State's indigency standards, those who may be excluded in the future because of more stringent indigency requirements necessitated by today's decision, and appellant Evaro, all have a plausible claim to government-supported medical care. The choice between them necessitated by a finite amount of resources is a classic example of the determination of priorities to be accorded conflicting claims, and would in the recent past have been thought to be a matter particularly within the competence of the state legislature to decide. As this Court stated in "the Constitution does not empower this Court to second-guess state officials charged with the difficult *280 responsibility of allocating limited public welfare funds among the myriad of potential recipients." The Court holds, however, that the State was barred from making the choice it made because of the burden its choice placed upon Evaro's "right to travel." Although the Court's definition of this "right" is hardly precise, the Court does state: "[T]he right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents." This rationale merits further attention. II The right to travel throughout the Nation has been recognized for over a century in the decisions of this Court.[4] See But the concept of that right has not been static. To see how distant a cousin the right to travel enunciated in this case is to the right declared by the Court in Crandall, reference need only be made to the language of Mr. Justice Miller, speaking for the Court: "But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are *281 conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it." The Court in Crandall established no right to free benefits from every State through which the traveler might pass, but more modestly held that the State could not use its taxing power to impede travel across its borders.[5] Later cases also defined this right to travel quite conservatively. For example, in the Court upheld a Georgia statute taxing "emigrant agents"—persons hiring labor for work outside the State—although agents hiring for local work went untaxed. The Court recognized that a right to travel existed, stating: "Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution." The Court went on, however, to decide that the statute, despite the added cost it assessed against exported labor, affected freedom of egress "only incidentally and remotely." Ibid.[6] *282 The leading earlier case, provides equally little support for the Court's expansive holding here. In Edwards the Court invalidated a California statute which subjected to criminal penalties any person "that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person." Five members of the Court found the statute unconstitutional under the Commerce Clause, finding in the Clause a "prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders." Four concurring Justices found a better justification for the result in the Fourteenth Amendment's protection of the "privileges of national citizenship."[7] Regardless of the right's precise source and definition, it is clear that the statute invalidated in Edwards was specifically designed to, and would, deter indigent persons from entering the State of California. The imposition of criminal penalties on all persons assisting the entry of an indigent served to block ingress as surely as if the State has posted guards at the border to turn indigents away. It made no difference to the operation of the statute that the indigent, once inside the State, would be supported by federal payments.[8] Furthermore, *283 the statute did not require that the indigent intend to take up continuous residence within the State. The statute was not therefore an incidental or remote barrier to migration, but was in fact an effective and purposeful attempt to insulate the State from indigents. The statute in the present case raises no comparable barrier. Admittedly, some indigent persons desiring to reside in Arizona may choose to weigh the possible detriment of providing their own nonemergency health care during the first year of their residence against the total benefits to be gained from continuing location within the State, but their mere entry into the State does not invoke criminal penalties. To the contrary, indigents are free to live within the State, to receive welfare benefits necessary for food and shelter,[9] and to receive free emergency medical care if needed. Furthermore, once the indigent has settled within a county for a year, he becomes eligible for full medical care at county expense. To say, therefore, that Arizona's treatment of indigents compares with California's treatment during the 1930's would border on the frivolous. Since those older cases discussing the right to travel are unhelpful to Evaro's cause here, reliance must be placed elsewhere. A careful reading of the Court's opinion discloses that the decision rests almost entirely on two cases of recent vintage: and In the Court struck down statutes requiring one year's residence prior to receiving welfare benefits. In Dunn the Court struck down a statute requiring a year's residence before receiving the right to vote. In placing reliance on these two cases, the Court *284 must necessarily distinguish or discredit recent cases of this Court upholding statutes requiring a year's residence for lower in-state tuition.[10] The important question for this purpose, according to the Court's analysis, is whether a classification " `operates to penalize those persons who have exercised their constitutional right of interstate migration.' " (Emphasis in Court's opinion.) Since the Court concedes that "some `waiting-period[s]. may not be penalties,' " ante, at 258-259, one would expect to learn from the opinion how to distinguish a waiting period which is a penalty from one which is not. Any expense imposed on citizens crossing state lines but not imposed on those staying put could theoretically be deemed a penalty on travel; the toll exacted from persons crossing from Delaware to New Jersey by the Delaware Memorial Bridge is a "penalty" on interstate travel in the most literal sense of all. But such charges,[11] as well as other fees for use of transportation facilities such as taxes on airport users,[12] have been upheld by this Court against attacks based upon the right to travel. It seems to me that the line to be derived from our prior cases is that some financial impositions on interstate travelers have such indirect or inconsequential impact on travel that they simply do not constitute the type of direct purposeful barriers struck down in Edwards and Where the impact is that remote, a State can reasonably require that the citizen bear some proportion of the State's cost in its facilities. I would think that this standard is not only supported by this Court's decisions, but would be *285 eminently sensible and workable. But the Court not only rejects this approach, it leaves us entirely without guidance as to the proper standard to be applied. The Court instead resorts to ipse dixit, declaring rather than demonstrating that the right to nonemergency medical care is within the class of rights protected by and Dunn: "Whatever the ultimate parameters of the penalty analysis, it is at least clear that medical care is as much `a basic necessity of life' to an indigent as welfare assistance. And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. See, e. g., ;" Ante, at 259. (Emphasis added; footnotes omitted.) However clear this conclusion may be to the majority, it is certainly not clear to me. The solicitude which the Court has shown in cases involving the right to vote,[13] and the virtual denial of entry inherent in denial of welfare benefits—"the very means by which to live," —ought not be so casually extended to the alleged deprivation here. Rather, the Court should examine, as it has done in the past, whether the challenged requirement erects a real and purposeful barrier to movement, or the threat of such a barrier, or whether the effects on travel, viewed realistically, are merely incidental and remote. As the above discussion has shown, the barrier here is hardly *286 a counterpart to the barriers condemned in earlier cases. That being so, the Court should observe its traditional respect for the State's allocation of its limited financial resources rather than unjustifiably imposing its own preferences. III The Court, in its examination of the proffered state interests, categorically rejects the contention that those who have resided in the county for a fixed period of time may have a greater stake in community facilities than the newly arrived. But this rejection is accomplished more by fiat than by reason. One of the principal factual distinctions between aff'd, and both of which upheld durational residence requirements for in-state university tuition,[14] and which struck them down for welfare recipients, is the nature of the aid which the State or county provides. Welfare benefits, whether in cash or in kind, are commonly funded from current tax revenues, which may well be supported by the very newest arrival as well as by the longtime resident. But universities and hospitals, although demanding operating support from current revenues, require extensive capital facilities which cannot possibly be funded out of current tax revenues. Thus, entirely apart from the majority's conception of whether nonemergency health care is more or less important than continued education, *287 the interest of longer established residents in capital facilities and their greater financial contribution to the construction of such facilities seems indisputable.[15] Other interests advanced by the State to support its statutory eligibility criteria are also rejected virtually out of hand by the Court. The protection of the county economies is dismissed with the statement that "[t]he conservation of the taxpayers' purse is simply not a sufficient state interest"[16] The Court points out that the cost of care, if not borne by the Government, may be borne by private hospitals such as appellant Memorial Hospital. While this observation is doubtless true in large part, and is bound to present a problem to any private hospital, it does not seem to me that it thus becomes a constitutional determinant. The Court also observes that the State may in fact save money by providing nonemergency medical care rather than waiting for deterioration of an illness. However valuable a qualified cost analysis might be to legislators drafting eligibility requirements, and however little this speculation may bear on Evaro's condition (which the record does not indicate to have been a deteriorating illness), this sort of judgment has traditionally been confided to legislatures, rather than to courts charged with determining constitutional questions. The Court likewise rejects all arguments based on *288 administrative objectives. Refusing to accept the assertion that a one-year waiting period is a "convenient rule of thumb to determine bona fide residence," the majority simply suggests its own alternatives. Similar analysis is applied in rejecting the appellees' argument based on the potential for fraud. The Court's declaration that an indigent applicant "intent on committing fraud, could as easily swear to having been a resident of the county for the preceding year as to being one currently" ignores the obvious fact that fabricating presence in the State for a year is surely more difficult than fabricating only a present intention to remain. The legal question in this case is simply whether the State of Arizona has acted arbitrarily in determining that access to local hospital facilities for nonemergency medical care should be denied to persons until they have established residence for one year. The impediment which this quite rational determination has placed on appellant Evaro's "right to travel" is so remote as to be negligible: so far as the record indicates Evaro moved from New Mexico to Arizona three years ago and has remained ever since. The eligibility requirement has not the slightest resemblance to the actual barriers to the right of free ingress and egress protected by the Constitution, and struck down in cases such as Crandall and Edwards. And, unlike it does not involve an urgent need for the necessities of life or a benefit funded from current revenues to which the claimant may well have contributed. It is a substantial broadening of, and departure from, all of these holdings, all the more remarkable for the lack of explanation which accompanies the result. Since I can subscribe neither to the method nor the result, I dissent.

Justice Brennan

dissenting

TWA, INC. v. Independent Federation of Flight Attendants

https://www.courtlistener.com/opinion/112211/twa-inc-v-independent-federation-of-flight-attendants/

https://www.courtlistener.com/api/rest/v3/clusters/112211/

1988-046

The issue in this case is whether under the Railway Labor Act (RLA) an employer, in allocating available jobs among members of a bargaining unit at the conclusion of a strike, may discriminate against full-term strikers by giving preference to employees who crossed the picket line to return to work before the strike was over. Because I conclude that such discrimination on the basis of union activity is "inherently destructive" of the right to strike, as guaranteed by both the RLA and the National Labor Relations Act (NLRA), I dissent. I Notwithstanding the Court's suggestion that the portion of the RLA at issue here addresses "primarily" the precertification context, ante, at 440, it should be clear that under the RLA an employee's right to strike is protected against coercion by her employer. The Court relies in part on Trainmen *444 v. Jacksonville Terminal Co., 394 U.S. 369 (1969), but it overlooks the clear teaching of that case: "[E]mployees subject to the Railway Labor Act enjoy the right to engage in primary strikes over major disputes.. . . Whether the source of this right be found in a particular provision of the Railway Labor Act or in the scheme as a whole, it is integral to the Act." Id., at 384-385 (footnote omitted). The "particular provision," we made clear, was § 2 Fourth. Id., at 385, n. 20. While the issue in Jacksonville Terminal was the extent of a state court's power to issue an antistrike injunction, we emphasized that the RLA's guarantee of the right to strike was not limited to the context of interference by the State: "However, § 2 Fourth of the RLA, added in 1934, was designed primarily, if not exclusively to prohibit coercive employer practices." Ibid. (emphasis added). Whatever may have been the "primary" purpose of § 2 Fourth, it is too late in the day to suggest that this provision, at least when read in the context of the entire RLA, does not prohibit employer coercion of the right to strike. The Court compounds its error in regard to the reach of § 2 Fourth with a more fundamental mistake when it appears to assume that the employer's action in this case is sanctioned by the mere fact that it occurred during the "self-help" stage of the dispute. Ante, at 440-442. Clearly this cannot be the case. I am confident that the Court would agree, for example, that an employer could not legally discharge striking employees under the RLA. But if this is so, it must be because the RLA contains some injunction against employer interference with the right to strike, even when that interference consists of actions taken during the period of permissible self-help. Thus, the question is not whether the RLA protects the right to strike against employer coercion — for it surely does — but whether that protection goes so far as to prohibit the specific employer practice at issue here. *445 The key to this case is a fundamental command of the RLA and the NLRA alike, which in the case of the RLA is textually anchored in § 2 Fourth: the employer may not engage in discrimination among its employees — whether at the precertification stage, the bargaining stage, or during or after a strike — on the basis of their degree of involvement in protected union activity such as a strike.[1] This case thus falls within the class of cases in which judicial intervention to enforce the right at issue is justified because "the scheme of the Railway Labor Act could not begin to work without judicial involvement." Chicago & N. W. R. Co. v. Transportation Union, 402 U.S. 570, 595 (1971) (BRENNAN, J., dissenting). The "central theme" of the RLA is, of course, "to bring about voluntary settlement." Ibid. But "unless the unions fairly represented all of their employees; unless the employer bargained with the certified representative of the employees; unless the status quo was maintained during the entire range of bargaining, the statutory mechanism could not hope to induce a negotiated settlement." Ibid. The same is true here: the statutory scheme would be just as incapable of bringing about a negotiated settlement if the employer, in the name of "self-help," impermissibly retaliated against employees because of their exercise of their right under the RLA to engage in protected union activity such as a strike.[2] II A That the RLA broadly enjoins discrimination against strikers does not necessarily settle the issue, of course. In the context of the NLRA we have on occasion found reason to *446 make an exception to that statute's nondiscrimination provision in the name of the employer's "necessity." See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). The RLA itself provides little guidance as to whether the employer is in any way privileged, in allocating jobs at the end of a strike, to give preference to bargaining unit members who crossed the picket line to return to work. As we have previously noted, "the Act is wholly inexplicit as to the scope of allowable self-help." Jacksonville Terminal, 394 U. S., at 391. While of course "the National Labor Relations Act cannot be imported wholesale into the railway labor arena," id., at 383, we have frequently "referred to the NLRA for assistance in construing the Railway Labor Act." Ibid. Given the paucity of RLA precedent on the specific issue before us, the Court quite properly looks to the NLRA for guidance. Ante, at 432-439. It arrives at an incorrect conclusion, however, because it mischaracterizes the employer's action and because it appears unwilling to take seriously the protection Congress has seen fit to afford to the right to strike. The Court's conception of this case is most clearly expressed in a key paragraph that summarizes its discussion of the NLRA case law: "To distinguish crossovers from new hires in the manner IFFA proposes would have the effect of penalizing those who decided not to strike in order to benefit those who did. . . . We see no reason why those employees who chose not to gamble on the success of the strike should suffer the consequences when the gamble proves unsuccessful. Requiring junior crossovers . . . to be displaced by more senior full-term strikers is precisely to visit the consequences of the lost gamble on those who refused to take the risk." Ante, at 438. This understanding of the Union's position contains a factual and a legal error, both of which infect the Court's analysis of the case. *447 In the first place, refusing to discriminate in favor of crossovers is not to visit the consequences of the lost strike on "those who refused to take the risk," but rather on those who rank lowest in seniority. Whether a given flight attendant chose to take the risk of the strike or not is wholly immaterial. Rather — as is virtually universally the case when work-force reductions are necessary for whatever reason in a unionized enterprise — it is the most junior employees, whether strikers or crossovers, who are most vulnerable. This is precisely the point of seniority. More fundamental, I fear, is the legal mistake inherent in the Court's objection to "penalizing those who decided not to strike in order to benefit those who did." The Court, of course, does precisely the opposite: it allows TWA to single out for penalty precisely those employees who were faithful to the strike until the end, in order to benefit those who abandoned it. What is unarticulated is the Court's basis for choosing one position over the other. If indeed one group or the other is to be "penalized,"[3] what basis does the Court have for determining that it should be those who remained on strike rather than those who returned to work? I see none, unless it is perhaps an unarticulated hostility toward strikes. In any case the NLRA does provide a basis for resolving this question. It requires simply that in making poststrike reinstatements an employer may not discriminate among its employees on account of their union activity. That, in fact, is the holding of NLRB v. Mackay Radio, supra, at 346 — the more familiar teaching as to the employer's right to hire permanent replacements having been dictum. If an employer may not discriminate — in either direction — on the basis of the employee's strike activity, then it follows that the employer must make decisions about which employees to reinstate on *448 the basis of some neutral criterion, such as seniority. That is precisely what the Union asks.[4] B We have recognized only a narrow exception to the general principle prohibiting discrimination against employees for exercising their right to strike. Since Mackay Radio it has been accepted that an employer may hire "permanent replacements" in order to maintain operations during a strike, and that these replacements need not be displaced to make room for returning strikers. The question here is whether the Mackay exception should be expanded to cover the present case, involving as it does members of the striking bargaining unit who have crossed the picket lines, rather than new hires from outside the bargaining unit. Despite the superficial similarity between the two situations, strong reasons counsel against applying the Mackay rule to crossover employees. The employer's promise to members of the bargaining unit that they will not be displaced at the end of a strike if they *449 cross the picket lines addresses a far different incentive to the bargaining-unit members than does the employer's promise of permanence to new hires. The employer's threat to hire permanent replacements from outside the existing work force puts pressure on the strikers as a group to abandon the strike before their positions are filled by others. But the employer's promise to members of the striking bargaining unit that if they abandon the strike (or refuse to join it at the outset) they will retain their jobs at strike's end in preference to more senior workers who remain on strike produces an additional dynamic: now there is also an incentive for individual workers to seek to save (or improve) their own positions at the expense of other members of the striking bargaining unit. We have previously observed that offers of "individual benefits to the strikers to induce them to abandon the strike. . . could be expected to undermine the strikers' mutual interest and place the entire strike effort in jeopardy." NLRB v. Erie Resistor Corp., 373 U.S. 221, 230-231 (1963). Such a "divide and conquer" tactic thus "strike[s] a fundamental blow to union . . . activity and the collective bargaining process itself." Ante, at 442. In Erie Resistor we found the employer's offer of superseniority to new hires and crossovers to be "inherently destructive" of the right to strike and therefore in contravention of §§ 8(a)(1) and (a)(3) of the NLRA. 373 U.S., at 231-232. In my view the same conclusion should apply here. Beyond its specific holding outlawing superseniority, I read Erie Resistor to stand for the principle that there are certain tools an employer may not use, even in the interest of continued operations during a strike, and that the permissibility of discriminatory measures taken for that purpose must be evaluated by weighing the "necessity" of the employer's action (i. e., its interest in maintaining operations during the strike) against its prejudice to the employees' right to strike.[5] It *450 seems clear to me that in this case the result of such an analysis should be to forbid the employer to give preferential treatment to crossovers, because of the destructive impact of such an action on the strikers' mutual interest. Thus, when an employer recalls workers to fill the available positions at the conclusion of a strike, it may not discriminate against either the strikers or the crossovers. Rather it must proceed according to some principle, such as seniority, that is neutral as between them.[6] That TWA failed to do.[7] *451 III Precedent under the NLRA clearly forbids an employer to burden the right to strike in the manner TWA has done in this case, and I see no reason why that conclusion should not apply equally under the RLA. In a case like this it is not difficult to conjure up a parade of horribles to support either position. Forbidding an employer to discriminate in favor of crossovers, as I would do, makes it impossible for a junior employee who does not want to strike, and who is unable to persuade a majority of her colleagues to adopt that stance, to be sure that she can save her job. But that employee is in the same position she would be in if a layoff were necessary for other reasons beyond her control, such as an economic downturn. The principle of seniority is based on the notion that it is those employees who have worked longest in an enterprise and therefore have most at stake whose jobs should be most protected. Permitting the employer to give preference to crossovers, as the Court today does, will mean that an employee of only six months' experience, who abandoned the strike one day before it ended, could displace a 20-year veteran who chose to remain faithful to the decision made collectively with her fellow workers until the group as a whole decided to end the strike. Unfortunately there will be individual injustices whichever *452A rule we adopt. I would favor — and I believe Congress has provided for — the rule that errs on the side of preferring solidarity and seniority, rather than a rule that would permit the employer to discriminate on the basis of protected union activity.

The issue in this case is whether under the Railway Labor Act (RLA) an employer, in allocating available jobs among members of a bargaining unit at the conclusion of a strike, may discriminate against full-term strikers by giving preference to employees who crossed the picket line to return to work before the strike was over. Because I conclude that such discrimination on the basis of union activity is "inherently destructive" of the right to strike, as guaranteed by both the RLA and the National Labor Relations Act (NLRA), I dissent. I Notwithstanding the Court's suggestion that the portion of the RLA at issue here addresses "primarily" the precertification context, ante, at 440, it should be clear that under the RLA an employee's right to strike is protected against coercion by her employer. The Court relies in part on Trainmen but it overlooks the clear teaching of that case: "[E]mployees subject to the Railway Labor Act enjoy the right to engage in primary strikes over major disputes. Whether the source of this right be found in a particular provision of the Railway Labor Act or in the scheme as a whole, it is integral to the Act." The "particular provision," we made clear, was 2 Fourth. While the issue in Jacksonville Terminal was the extent of a state court's power to issue an antistrike injunction, we emphasized that the RLA's guarantee of the right to strike was not limited to the context of interference by the State: "However, 2 Fourth of the RLA, added in 1934, was designed primarily, if not exclusively to prohibit coercive employer practices." Whatever may have been the "primary" purpose of 2 Fourth, it is too late in the day to suggest that this provision, at least when read in the context of the entire RLA, does not prohibit employer coercion of the right to strike. The Court compounds its error in regard to the reach of 2 Fourth with a more fundamental mistake when it appears to assume that the employer's action in this case is sanctioned by the mere fact that it occurred during the "self-help" stage of the dispute. Ante, at 440-442. Clearly this cannot be the case. I am confident that the Court would agree, for example, that an employer could not legally discharge striking employees under the RLA. But if this is so, it must be because the RLA contains some injunction against employer interference with the right to strike, even when that interference consists of actions taken during the period of permissible self-help. Thus, the question is not whether the RLA protects the right to strike against employer coercion — for it surely does — but whether that protection goes so far as to prohibit the specific employer practice at issue here. *445 The key to this case is a fundamental command of the RLA and the NLRA alike, which in the case of the RLA is textually anchored in 2 Fourth: the employer may not engage in discrimination among its employees — whether at the precertification stage, the bargaining stage, or during or after a strike — on the basis of their degree of involvement in protected union activity such as a strike.[1] This case thus falls within the class of cases in which judicial intervention to enforce the right at issue is justified because "the scheme of the Railway Labor Act could not begin to work without judicial involvement." Chicago & N. W. R. The "central theme" of the RLA is, of course, "to bring about voluntary settlement." But "unless the unions fairly represented all of their employees; unless the employer bargained with the certified representative of the employees; unless the status quo was maintained during the entire range of bargaining, the statutory mechanism could not hope to induce a negotiated settlement." The same is true here: the statutory scheme would be just as incapable of bringing about a negotiated settlement if the employer, in the name of "self-help," impermissibly retaliated against employees because of their exercise of their right under the RLA to engage in protected union activity such as a strike.[2] II A That the RLA broadly enjoins discrimination against strikers does not necessarily settle the issue, of course. In the context of the NLRA we have on occasion found reason to *446 make an exception to that statute's nondiscrimination provision in the name of the employer's "necessity." See The RLA itself provides little guidance as to whether the employer is in any way privileged, in allocating jobs at the end of a strike, to give preference to bargaining unit members who crossed the picket line to return to work. As we have previously noted, "the Act is wholly inexplicit as to the scope of allowable self-help." Jacksonville Terminal, While of course "the National Labor Relations Act cannot be imported wholesale into the railway labor arena," we have frequently "referred to the NLRA for assistance in construing the Railway Labor Act." Given the paucity of RLA precedent on the specific issue before us, the Court quite properly looks to the NLRA for guidance. Ante, at 432-439. It arrives at an incorrect conclusion, however, because it mischaracterizes the employer's action and because it appears unwilling to take seriously the protection Congress has seen fit to afford to the right to strike. The Court's conception of this case is most clearly expressed in a key paragraph that summarizes its discussion of the NLRA case law: "To distinguish crossovers from new hires in the manner IFFA proposes would have the effect of penalizing those who decided not to strike in order to benefit those who did. We see no reason why those employees who chose not to gamble on the success of the strike should suffer the consequences when the gamble proves unsuccessful. Requiring junior crossovers to be displaced by more senior full-term strikers is precisely to visit the consequences of the lost gamble on those who refused to take the risk." Ante, at 438. This understanding of the Union's position contains a factual and a legal error, both of which infect the Court's analysis of the case. *447 In the first place, refusing to discriminate in favor of crossovers is not to visit the consequences of the lost strike on "those who refused to take the risk," but rather on those who rank lowest in seniority. Whether a given flight attendant chose to take the risk of the strike or not is wholly immaterial. Rather — as is virtually universally the case when work-force reductions are necessary for whatever reason in a unionized enterprise — it is the most junior employees, whether strikers or crossovers, who are most vulnerable. This is precisely the point of seniority. More fundamental, I fear, is the legal mistake inherent in the Court's objection to "penalizing those who decided not to strike in order to benefit those who did." The Court, of course, does precisely the opposite: it allows TWA to single out for penalty precisely those employees who were faithful to the strike until the end, in order to benefit those who abandoned it. What is unarticulated is the Court's basis for choosing one position over the other. If indeed one group or the other is to be "penalized,"[3] what basis does the Court have for determining that it should be those who remained on strike rather than those who returned to work? I see none, unless it is perhaps an unarticulated hostility toward strikes. In any case the NLRA does provide a basis for resolving this question. It requires simply that in making poststrike reinstatements an employer may not discriminate among its employees on account of their union activity. That, in fact, is the holding of NLRB v. Mackay at 346 — the more familiar teaching as to the employer's right to hire permanent replacements having been dictum. If an employer may not discriminate — in either direction — on the basis of the employee's strike activity, then it follows that the employer must make decisions about which employees to reinstate on *448 the basis of some neutral criterion, such as seniority. That is precisely what the Union asks.[4] B We have recognized only a narrow exception to the general principle prohibiting discrimination against employees for exercising their right to strike. Since Mackay it has been accepted that an employer may hire "permanent replacements" in order to maintain operations during a strike, and that these replacements need not be displaced to make room for returning strikers. The question here is whether the Mackay exception should be expanded to cover the present case, involving as it does members of the striking bargaining unit who have crossed the picket lines, rather than new hires from outside the bargaining unit. Despite the superficial similarity between the two situations, strong reasons counsel against applying the Mackay rule to crossover employees. The employer's promise to members of the bargaining unit that they will not be displaced at the end of a strike if they *449 cross the picket lines addresses a far different incentive to the bargaining-unit members than does the employer's promise of permanence to new hires. The employer's threat to hire permanent replacements from outside the existing work force puts pressure on the strikers as a group to abandon the strike before their positions are filled by others. But the employer's promise to members of the striking bargaining unit that if they abandon the strike (or refuse to join it at the outset) they will retain their jobs at strike's end in preference to more senior workers who remain on strike produces an additional dynamic: now there is also an incentive for individual workers to seek to save (or improve) their own positions at the expense of other members of the striking bargaining unit. We have previously observed that offers of "individual benefits to the strikers to induce them to abandon the strike. could be expected to undermine the strikers' mutual interest and place the entire strike effort in jeopardy." Such a "divide and conquer" tactic thus "strike[s] a fundamental blow to union activity and the collective bargaining process itself." Ante, at 442. In Erie Resistor we found the employer's offer of superseniority to new hires and crossovers to be "inherently destructive" of the right to strike and therefore in contravention of 8(a)(1) and (a)(3) of the -232. In my view the same conclusion should apply here. Beyond its specific holding outlawing superseniority, I read Erie Resistor to stand for the principle that there are certain tools an employer may not use, even in the interest of continued operations during a strike, and that the permissibility of discriminatory measures taken for that purpose must be evaluated by weighing the "necessity" of the employer's action (i. e., its interest in maintaining operations during the strike) against its prejudice to the employees' right to strike.[5] It *450 seems clear to me that in this case the result of such an analysis should be to forbid the employer to give preferential treatment to crossovers, because of the destructive impact of such an action on the strikers' mutual interest. Thus, when an employer recalls workers to fill the available positions at the conclusion of a strike, it may not discriminate against either the strikers or the crossovers. Rather it must proceed according to some principle, such as seniority, that is neutral as between them.[6] That TWA failed to do.[7] *451 III Precedent under the NLRA clearly forbids an employer to burden the right to strike in the manner TWA has done in this case, and I see no reason why that conclusion should not apply equally under the RLA. In a case like this it is not difficult to conjure up a parade of horribles to support either position. Forbidding an employer to discriminate in favor of crossovers, as I would do, makes it impossible for a junior employee who does not want to strike, and who is unable to persuade a majority of her colleagues to adopt that stance, to be sure that she can save her job. But that employee is in the same position she would be in if a layoff were necessary for other reasons beyond her control, such as an economic downturn. The principle of seniority is based on the notion that it is those employees who have worked longest in an enterprise and therefore have most at stake whose jobs should be most protected. Permitting the employer to give preference to crossovers, as the Court today does, will mean that an employee of only six months' experience, who abandoned the strike one day before it ended, could displace a 20-year veteran who chose to remain faithful to the decision made collectively with her fellow workers until the group as a whole decided to end the strike. Unfortunately there will be individual injustices whichever *452A rule we adopt. I would favor — and I believe Congress has provided for — the rule that errs on the side of preferring solidarity and seniority, rather than a rule that would permit the employer to discriminate on the basis of protected union activity.

Justice Burger

majority

United States v. Boyle

https://www.courtlistener.com/opinion/111296/united-states-v-boyle/

https://www.courtlistener.com/api/rest/v3/clusters/111296/

1984-017

We granted certiorari to resolve a conflict among the Circuits on whether a taxpayer's reliance on an attorney to prepare and file a tax return constitutes "reasonable cause" under § 6651(a)(1) of the Internal Revenue Code, so as to defeat a statutory penalty incurred because of a late filing. I A Respondent, Robert W. Boyle, was appointed executor of the will of his mother, Myra Boyle, who died on September 14, 1978; respondent retained Ronald Keyser to serve as attorney for the estate. Keyser informed respondent that the estate must file a federal estate tax return, but he did not mention the deadline for filing this return. Under 26 U.S. C. § 6075(a), the return was due within nine months of the decedent's death, i. e., not later than June 14, 1979. Although a businessman, respondent was not experienced in the field of federal estate taxation, other than having been executor of his father's will 20 years earlier. It is undisputed that he relied on Keyser for instruction and guidance. He cooperated fully with his attorney and provided Keyser with all relevant information and records. Respondent and his wife contacted Keyser a number of times during the spring and summer of 1979 to inquire about the progress of *243 the proceedings and the preparation of the tax return; they were assured that they would be notified when the return was due and that the return would be filed "in plenty of time." App. 39. When respondent called Keyser on September 6, 1979, he learned for the first time that the return was by then overdue. Apparently, Keyser had overlooked the matter because of a clerical oversight in omitting the filing date from Keyser's master calendar. Respondent met with Keyser on September 11, and the return was filed on September 13, three months late. B Acting pursuant to 26 U.S. C. § 6651(a)(1), the Internal Revenue Service assessed against the estate an additional tax of $17,124.45 as a penalty for the late filing, with $1,326.56 in interest. Section 6651(a)(1) reads in pertinent part: "In case of failure . . . to file any return . . . on the date prescribed therefor . . . , unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate . . . ." (Emphasis added.) A Treasury Regulation provides that, to demonstrate "reasonable cause," a taxpayer filing a late return must show that he "exercised ordinary business care and prudence and was nevertheless unable to file the return within the prescribed time." 26 CFR § 301.6651-1(c)(1) (1984).[1] *244 Respondent paid the penalty and filed a claim for a refund. He conceded that the assessment for interest was proper, but contended that the penalty was unjustified because his failure to file the return on time was "due to reasonable cause," i. e., reliance on his attorney. Respondent brought suit in the United States District Court, which concluded that the claim was controlled by the Court of Appeals' holding in Rohrabaugh v. United States, 611 F.2d 211 (CA7 1979). In Rohrabaugh, the United States Court of Appeals for the Seventh Circuit held that reliance upon counsel constitutes "reasonable cause" under § 6651(a)(1) when: (1) the taxpayer is unfamiliar with the tax law; (2) the taxpayer makes full disclosure of all relevant facts to the attorney that he relies upon, and maintains contact with the attorney from time to time during the administration of the estate; and (3) the taxpayer has otherwise exercised ordinary business care and prudence. 611 F.2d, at 215, 219. The District Court held that, under Rohrabaugh, respondent had established "reasonable cause" for the late filing of his tax return; accordingly, it granted summary judgment for respondent and ordered refund of the penalty. A divided panel of the Seventh Circuit, with three opinions, affirmed. 710 F.2d 1251 (1983). *245 We granted certiorari, 466 U.S. 903 (1984), and we reverse. II A Congress' purpose in the prescribed civil penalty was to ensure timely filing of tax returns to the end that tax liability will be ascertained and paid promptly. The relevant statutory deadline provision is clear; it mandates that all federal estate tax returns be filed within nine months from the decedent's death, 26 U.S. C. 6075(a).[2] Failure to comply incurs a penalty of 5 percent of the ultimately determined tax for each month the return is late, with a maximum of 25 percent of the base tax. To escape the penalty, the taxpayer bears the heavy burden of proving both (1) that the failure did not result from "willful neglect," and (2) that the failure was "due to reasonable cause." 26 U.S. C. § 6651(a)(1). The meaning of these two standards has become clear over the near-70 years of their presence in the statutes.[3] As used here, the term "willful neglect" may be read as meaning a conscious, intentional failure or reckless indifference. See *246 Orient Investment & Finance Co. v. Commissioner, 83 U. S. App. D. C. 74, 75, 166 F.2d 601, 602 (1948); Hatfried, Inc. v. Commissioner, 162 F.2d 628, 634 (CA3 1947); Janice Leather Imports Ltd. v. United States, 391 F. Supp. 1235, 1237 (SDNY 1974); Gemological Institute of America, Inc. v. Riddell, 149 F. Supp. 128, 131-132 (SD Cal. 1957). Like "willful neglect," the term "reasonable cause" is not defined in the Code, but the relevant Treasury Regulation calls on the taxpayer to demonstrate that he exercised "ordinary business care and prudence" but nevertheless was "unable to file the return within the prescribed time."[4] 26 CFR § 301.6651(c)(1)(1984); accord, e. g., Fleming v. United States, 648 F.2d 1122, 1124 (CA7 1981); Ferrando v. United States, 245 F.2d 582, 587 (CA9 1957); Haywood Lumber & Mining Co. v. Commissioner, 178 F.2d 769, 770 (CA2 1950); Southeastern Finance Co. v. Commissioner, 153 F.2d 205 (CA5 1946); Girard Investment Co. v. Commissioner, 122 F.2d 843, 848 (CA3 1941); see also n. 1, supra. The Commissioner does not contend that respondent's failure to file the estate tax return on time was willful or reckless. The question to be resolved is whether, under the statute, *247 reliance on an attorney in the instant circumstances is a "reasonable cause" for failure to meet the deadline. B In affirming the District Court, the Court of Appeals recognized the difficulties presented by its formulation but concluded that it was bound by Rohrabaugh v. United States, 611 F.2d 211 (CA7 1979). The Court of Appeals placed great importance on the fact that respondent engaged the services of an experienced attorney specializing in probate matters and that he duly inquired from time to time as to the progress of the proceedings. As in Rohrabaugh, see id., at 219, the Court of Appeals in this case emphasized that its holding was narrowly drawn and closely tailored to the facts before it. The court stressed that the question of "reasonable cause" was an issue to be determined on a case-by-case basis. See 710 F.2d, at 1253-1254; id., at 1254 (Coffey, J., concurring). Other Courts of Appeals have dealt with the issue of "reasonable cause" for a late filing and reached contrary conclusions.[5] In Ferrando v. United States, 245 F.2d 582 (CA9 1957), the court held that taxpayers have a personal and nondelegable duty to file a return on time, and that reliance on an attorney to fulfill this obligation does not constitute "reasonable cause" for a tardy filing. Id., at 589. The Fifth Circuit has similarly held that the responsibility for ensuring a timely filing is the taxpayer's alone, and that the taxpayer's reliance on his tax advisers — accountants or *248 attorneys — is not a "reasonable cause." Millette & Associates v. Commissioner, 594 F.2d 121, 124-125 (per curiam), cert. denied, 444 U.S. 899 (1979); Logan Lumber Co. v. Commissioner, 365 F.2d 846, 854 (1966). The Eighth Circuit also has concluded that reliance on counsel does not constitute "reasonable cause." Smith v. United States, 702 F.2d 741, 743 (1983) (per curiam); Boeving v. United States, 650 F.2d 493, 495 (1981); Estate of Lillehei v. Commissioner, 638 F.2d 65, 66 (1981) (per curiam). III We need not dwell on the similarities or differences in the facts presented by the conflicting holdings. The time has come for a rule with as "bright" a line as can be drawn consistent with the statute and implementing regulations.[6]*249 Deadlines are inherently arbitrary; fixed dates, however, are often essential to accomplish necessary results. The Government has millions of taxpayers to monitor, and our system of self-assessment in the initial calculation of a tax simply cannot work on any basis other than one of strict filing standards. Any less rigid standard would risk encouraging a lax attitude toward filing dates.[7] Prompt payment of taxes is imperative to the Government, which should not have to assume the burden of unnecessary ad hoc determinations.[8] Congress has placed the burden of prompt filing on the executor, not on some agent or employee of the executor. The duty is fixed and clear; Congress intended to place upon the taxpayer on obligation to ascertain the statutory deadline and then to meet that deadline, except in a very narrow range of *250 situations. Engaging an attorney to assist in the probate proceedings is plainly an exercise of the "ordinary business care and prudence" prescribed by the regulations, 26 CFR § 301.6651-1(c)(1) (1984), but that does not provide an answer to the question we face here. To say that it was "reasonable" for the executor to assume that the attorney would comply with the statute may resolve the matter as between them, but not with respect to the executor's obligations under the statute. Congress has charged the executor with an unambiguous, precisely defined duty to file the return within nine months; extensions are granted fairly routinely. That the attorney, as the executor's agent, was expected to attend to the matter does not relieve the principal of his duty to comply with the statute. This case is not one in which a taxpayer has relied on the erroneous advice of counsel concerning a question of law. Courts have frequently held that "reasonable cause" is established when a taxpayer shows that he reasonably relied on the advice of an accountant or attorney that it was unnecessary to file a return, even when such advice turned out to have been mistaken. See, e. g., United States v. Kroll, 547 F.2d 393, 395-396 (CA7 1977); Commissioner v. American Assn. of Engineers Employment, Inc., 204 F.2d 19, 21 (CA7 1953); Burton Swartz Land Corp. v. Commissioner, 198 F.2d 558, 560 (CA5 1952); Haywood Lumber & Mining Co. v. Commissioner, 178 F. 2d, at 771; Orient Investment & Finance Co. v. Commissioner, 83 U. S. App. D. C., at 75, 166 F.2d, at 603; Hatfried, Inc. v. Commissioner, 162 F. 2d, at 633-635; Girard Investment Co. v. Commissioner, 122 F. 2d, at 848; Dayton Bronze Bearing Co. v. Gilligan, 281 F. 709, 712 (CA6 1922). This Court also has implied that, in such a situation, reliance on the opinion of a tax adviser may constitute reasonable cause for failure to file a return. See Commissioner v. Lane-Wells Co., 321 U.S. 219 (1944) (remanding for determination whether failure to file return was due to *251 reasonable cause, when taxpayer was advised that filing was not required).[9] When an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice. Most taxpayers are not competent to discern error in the substantive advice of an accountant or attorney. To require the taxpayer to challenge the attorney, to seek a "second opinion," or to try to monitor counsel on the provisions of the Code himself would nullify the very purpose of seeking the advice of a presumed expert in the first place. See Haywood Lumber, supra, at 771. "Ordinary business care and prudence" do not demand such actions. By contrast, one does not have to be a tax expert to know that tax returns have fixed filing dates and that taxes must be paid when they are due. In short, tax returns imply deadlines. Reliance by a lay person on a lawyer is of course common; but that reliance cannot function as a substitute for compliance with an unambiguous statute. Among the first duties of the representative of a decedent's estate is to identify and assemble the assets of the decedent and to ascertain tax obligations. Although it is common practice for an executor to engage a professional to prepare and file *252 an estate tax return, a person experienced in business matters can perform that task personally. It is not unknown for an executor to prepare tax returns, take inventories, and carry out other significant steps in the probate of an estate. It is even not uncommon for an executor to conduct probate proceedings without counsel. It requires no special training or effort to ascertain a deadline and make sure that it is met. The failure to make a timely filing of a tax return is not excused by the taxpayer's reliance on an agent, and such reliance is not "reasonable cause" for a late filing under § 6651(a)(1). The judgment of the Court of Appeals is reversed. It is so ordered.

We granted certiorari to resolve a conflict among the Circuits on whether a taxpayer's reliance on an attorney to prepare and file a tax return constitutes "reasonable cause" under 5(a)() of the Internal Revenue Code, so as to defeat a statutory penalty incurred because of a late filing. I A Respondent, Robert W. Boyle, was appointed executor of the will of his mother, Myra Boyle, who died on September 4, 978; respondent retained Ronald Keyser to serve as attorney for the estate. Keyser informed respondent that the estate must file a federal estate tax return, but he did not mention the deadline for filing this return. Under 26 U.S. C. 60(a), the return was due within nine months of the decedent's death, i. e., not later than June 4, Although a businessman, respondent was not experienced in the field of federal estate taxation, other than having been executor of his father's will 20 years earlier. It is undisputed that he relied on Keyser for instruction and guidance. He cooperated fully with his attorney and provided Keyser with all relevant information and records. Respondent and his wife contacted Keyser a number of times during the spring and summer of to inquire about the progress of *243 the proceedings and the preparation of the tax return; they were assured that they would be notified when the return was due and that the return would be filed "in plenty of time." App. 39. When respondent called Keyser on September 6, he learned for the first time that the return was by then overdue. Apparently, Keyser had overlooked the matter because of a clerical oversight in omitting the filing date from Keyser's master calendar. Respondent met with Keyser on September and the return was filed on September 3, three months late. B Acting pursuant to 26 U.S. C. 5(a)(), the Internal Revenue Service assessed against the estate an additional tax of $7,24.45 as a penalty for the late filing, with $,326.56 in interest. Section 5(a)() reads in pertinent part: "In case of failure to file any return on the date prescribed therefor unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate" (Emphasis added.) A Treasury Regulation provides that, to demonstrate "reasonable cause," a taxpayer filing a late return must show that he "exercised ordinary business care and prudence and was nevertheless unable to file the return within the prescribed time." 26 CFR 30.5-(c)()[] *244 Respondent paid the penalty and filed a claim for a refund. He conceded that the assessment for interest was proper, but contended that the penalty was unjustified because his failure to file the return on time was "due to reasonable cause," i. e., reliance on his attorney. Respondent brought suit in the United States District Court, which concluded that the claim was controlled by the Court of Appeals' holding in In Rohrabaugh, the United States Court of Appeals for the Seventh Circuit held that reliance upon counsel constitutes "reasonable cause" under 5(a)() when: () the taxpayer is unfamiliar with the tax law; (2) the taxpayer makes full disclosure of all relevant facts to the attorney that he relies upon, and maintains contact with the attorney from time to time during the administration of the estate; and (3) the taxpayer has otherwise exercised ordinary business care and prudence. 29. The District Court held that, under Rohrabaugh, respondent had established "reasonable cause" for the late filing of his tax return; accordingly, it granted summary judgment for respondent and ordered refund of the penalty. A divided panel of the Seventh Circuit, with three opinions, affirmed. *245 We granted certiorari, and we reverse. II A Congress' purpose in the prescribed civil penalty was to ensure timely filing of tax returns to the end that tax liability will be ascertained and paid promptly. The relevant statutory deadline provision is clear; it mandates that all federal estate tax returns be filed within nine months from the decedent's death, 26 U.S. C. 60(a).[2] Failure to comply incurs a penalty of 5 percent of the ultimately determined tax for each month the return is late, with a maximum of 25 percent of the base tax. To escape the penalty, the taxpayer bears the heavy burden of proving both () that the failure did not result from "willful neglect," and (2) that the failure was "due to reasonable cause." 26 U.S. C. 5(a)(). The meaning of these two standards has become clear over the near-70 years of their presence in the statutes.[3] As used here, the term "willful neglect" may be read as meaning a conscious, intentional failure or reckless indifference. See *246 Orient Investment & Finance ; Hatfried, ; Janice Leather Imports ; Gemological Institute of America, Like "willful neglect," the term "reasonable cause" is not defined in the Code, but the relevant Treasury Regulation calls on the taxpayer to demonstrate that he exercised "ordinary business care and prudence" but nevertheless was "unable to file the return within the prescribed time."[4] 26 CFR 30.5(c)(); accord, e. g., ; ; Haywood & Mining ; Southeastern Finance ; Girard Investment ; see also n. The Commissioner does not contend that respondent's failure to file the estate tax return on time was willful or reckless. The question to be resolved is whether, under the statute, *247 reliance on an attorney in the instant circumstances is a "reasonable cause" for failure to meet the deadline. B In affirming the District Court, the Court of Appeals recognized the difficulties presented by its formulation but concluded that it was bound by The Court of Appeals placed great importance on the fact that respondent engaged the services of an experienced attorney specializing in probate matters and that he duly inquired from time to time as to the progress of the proceedings. As in Rohrabaugh, see at 29, the Court of Appeals in this case emphasized that its holding was narrowly drawn and closely tailored to the facts before it. The court stressed that the question of "reasonable cause" was an issue to be determined on a case-by-case basis. See 70 F.2d, at 253-254; at 254 Other Courts of Appeals have dealt with the issue of "reasonable cause" for a late filing and reached contrary conclusions.[5] In the court held that taxpayers have a personal and nondelegable duty to file a return on time, and that reliance on an attorney to fulfill this obligation does not constitute "reasonable cause" for a tardy filing. The Fifth Circuit has similarly held that the responsibility for ensuring a timely filing is the taxpayer's alone, and that the taxpayer's reliance on his tax advisers — accountants or *248 attorneys — is not a "reasonable cause." Millette & 594 F.2d 2, 24-25 cert. denied, ; Logan (9). The Eighth Circuit also has concluded that reliance on counsel does not constitute "reasonable cause." 702 F.2d 74, ; ; Estate of III We need not dwell on the similarities or differences in the facts presented by the conflicting holdings. The time has come for a rule with as "bright" a line as can be drawn consistent with the statute and implementing regulations.[6]*249 Deadlines are inherently arbitrary; fixed dates, however, are often essential to accomplish necessary results. The Government has millions of taxpayers to monitor, and our system of self-assessment in the initial calculation of a tax simply cannot work on any basis other than one of strict filing standards. Any less rigid standard would risk encouraging a lax attitude toward filing dates.[7] Prompt payment of taxes is imperative to the Government, which should not have to assume the burden of unnecessary ad hoc determinations.[8] Congress has placed the burden of prompt filing on the executor, not on some agent or employee of the executor. The duty is fixed and clear; Congress intended to place upon the taxpayer on obligation to ascertain the statutory deadline and then to meet that deadline, except in a very narrow range of *250 situations. Engaging an attorney to assist in the probate proceedings is plainly an exercise of the "ordinary business care and prudence" prescribed by the regulations, 26 CFR 30.5-(c)() but that does not provide an answer to the question we face here. To say that it was "reasonable" for the executor to assume that the attorney would comply with the statute may resolve the matter as between them, but not with respect to the executor's obligations under the statute. Congress has charged the executor with an unambiguous, precisely defined duty to file the return within nine months; extensions are granted fairly routinely. That the attorney, as the executor's agent, was expected to attend to the matter does not relieve the principal of his duty to comply with the statute. This case is not one in which a taxpayer has relied on the erroneous advice of counsel concerning a question of law. Courts have frequently held that "reasonable cause" is established when a taxpayer shows that he reasonably relied on the advice of an accountant or attorney that it was unnecessary to file a return, even when such advice turned out to have been mistaken. See, e. g., United (CA7 977); 204 F.2d 9, 2 (CA7 953); Burton Swartz Land 98 F.2d 558, (CA5 952); Haywood & Mining 78 F. 2d, at 77; Orient Investment & Finance 83 U. S. App. D. C., at F.2d, at 603; Hatfried, 62 F. 2d, at 633-635; Girard Investment 22 F. 2d, at ; Dayton Bronze Bearing 28 F. 709, 72 (CA6 922). This Court also has implied that, in such a situation, reliance on the opinion of a tax adviser may constitute reasonable cause for failure to file a return. See 32 U.S. 29 (944) (remanding for determination whether failure to file return was due to *25 reasonable cause, when taxpayer was advised that filing was not required).[9] When an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice. Most taxpayers are not competent to discern error in the substantive advice of an accountant or attorney. To require the taxpayer to challenge the attorney, to seek a "second opinion," or to try to monitor counsel on the provisions of the Code himself would nullify the very purpose of seeking the advice of a presumed expert in the first place. See Haywood at 77. "Ordinary business care and prudence" do not demand such actions. By contrast, one does not have to be a tax expert to know that tax returns have fixed filing dates and that taxes must be paid when they are due. In short, tax returns imply deadlines. Reliance by a lay person on a lawyer is of course common; but that reliance cannot function as a substitute for compliance with an unambiguous statute. Among the first duties of the representative of a decedent's estate is to identify and assemble the assets of the decedent and to ascertain tax obligations. Although it is common practice for an executor to engage a professional to prepare and file *252 an estate tax return, a person experienced in business matters can perform that task personally. It is not unknown for an executor to prepare tax returns, take inventories, and carry out other significant steps in the probate of an estate. It is even not uncommon for an executor to conduct probate proceedings without counsel. It requires no special training or effort to ascertain a deadline and make sure that it is met. The failure to make a timely filing of a tax return is not excused by the taxpayer's reliance on an agent, and such reliance is not "reasonable cause" for a late filing under 5(a)(). The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Scalia

majority

Sackett v. Epa

https://www.courtlistener.com/opinion/625847/sackett-v-epa/

https://www.courtlistener.com/api/rest/v3/clusters/625847/

2011-040

We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U.S. C. §500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an admin­ istrative compliance order under §309 of the Clean Water Act, 33 U.S. C. §1319. The order asserts that the Sack­ etts’ property is subject to the Act, and that they have violated its provisions by placing fill material on the prop­ erty; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan. I The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” §1311, without a permit, into the “navigable waters,” §1344—which the Act defines as “the waters of the United States,” §1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. §1319(a)(3). When the EPA prevails in a civil action, the Act provides for “a civil penalty not to exceed [$37,500] per 2 SACKETT v. EPA Opinion of the Court day for each violation.”1 §1319(d). And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to $37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order. The particulars of this case flow from a dispute about the scope of “the navigable waters” subject to this en­ forcement regime. Today we consider only whether the dispute may be brought to court by challenging the com­ pliance order—we do not resolve the dispute on the merits. The reader will be curious, however, to know what all the fuss is about. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), we upheld a regulation that construed “the navigable waters” to include “freshwa­ ter wetlands,” id., at 124, themselves not actually naviga­ ble, that were adjacent to navigable-in-fact waters. Later, in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001), we held that an abandoned sand and gravel pit, which “seasonally ponded” but which was not adjacent to open water, id., at 164, was not part of the navigable waters. Then most recently, in Rapanos v. United States, 547 U.S. 715 (2006), we consid­ ered whether a wetland not adjacent to navigable-in-fact waters fell within the scope of the Act. Our answer was no, but no one rationale commanded a majority of the Court. In his separate opinion, THE CHIEF JUSTICE ex­ pressed the concern that interested parties would lack —————— 1 The original statute set a penalty cap of $25,000 per violation per day. The Federal Civil Penalties Inflation Adjustment Act of 1990, 104 Stat. 890, note following 28 U.S. C. §2461, as amended by the Debt Collection Improvement Act of 1996, §3720E, 110 Stat. 1321–373, note following 28 U.S. C. §2461, p. 1315 (Amendment), authorizes the EPA to adjust that maximum penalty for inflation. On the basis of that authority, the agency has raised the cap to $37,500. See 74 Fed. Reg. 626, 627 (2009). Cite as: 566 U. S. ____ (2012) 3 Opinion of the Court guidance “on precisely how to read Congress’ limits on the reach of the Clean Water Act” and would be left “to feel their way on a case-by-case basis.” Id., at 758 (concurring opinion). The Sacketts are interested parties feeling their way. They own a 2⁄3-acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but is separated from the lake by several lots containing perma­ nent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and rock. Some months later, they received from the EPA a compli­ ance order. The order contained a number of “Findings and Conclusions,” including the following: “1.4 [The Sacketts’ property] contains wetlands with­ in the meaning of 33 C. F. R. §328.4(8)(b); the wet­ lands meet the criteria for jurisdictional wetlands in the 1987 ‘Federal Manual for Identifying and Deline­ ating Jurisdictional Wetlands.’ “1.5 The Site’s wetlands are adjacent to Priest Lake within the meaning of 33 C. F. R. §328.4(8)(c). Priest Lake is a ‘navigable water’ within the meaning of sec­ tion 502(7) of the Act, 33 U.S. C. §1362(7), and ‘wa­ ters of the United States’ within the meaning of 40 C. F. R. §232.2. “1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or persons acting on their behalf discharged fill material into wetlands at the Site. [They] filled approximately one half acre. . . . . . “1.9 By causing such fill material to enter waters of the United States, [the Sacketts] have engaged, and are continuing to engage, in the ‘discharge of pollu­ tants’ from a point source within the meaning of sec­ tions 301 and 502(12) of the Act, 33 U.S. C. §§1311 and 1362(12). . . . . . 4 SACKETT v. EPA Opinion of the Court “1.11 [The Sacketts’] discharge of pollutants into wa­ ters of the United States at the Site without [a] per­ mit constitutes a violation of section 301 of the Act, 33 U.S. C. §1311.” App. 19–20. On the basis of these findings and conclusions, the order directs the Sacketts, among other things, “immediately [to] undertake activities to restore the Site in accordance with [an EPA-created] Restoration Work Plan” and to “pro- vide and/or obtain access to the Site . . . [and] access to all records and documentation related to the conditions at the Site . . . to EPA employees and/or their designated representatives.” Id., at 21–22, ¶¶2.1, 2.7. The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but that request was denied. They then brought this action in the United States District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA’s issuance of the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U.S. C. §706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject­ matter jurisdiction, and the United States Court of Ap­ peals for the Ninth Circuit affirmed, 622 F.3d 1139 (2010). It concluded that the Act “preclude[s] pre­ enforcement judicial review of compliance orders,” id., at 1144, and that such preclusion does not violate the Fifth Amendment’s due process guarantee, id., at 1147. We granted certiorari. 564 U. S. ___ (2011). II The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S. C. §704. We consider first whether the compliance Cite as: 566 U. S. ____ (2012) 5 Opinion of the Court order is final agency action. There is no doubt it is agency action, which the APA defines as including even a “failure to act.” §§551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA “ ‘determined’ ” “ ‘rights or ob­ ligations.’ ” Bennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Port of Boston Marine Terminal Assn. v. Re- deriaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). By reason of the order, the Sacketts have the legal obliga­ tion to “restore” their property according to an agency­ approved Restoration Work Plan, and must give the EPA access to their property and to “records and documentation related to the conditions at the Site.” App. 22, ¶2.7. Also, “ ‘legal consequences . . . flow’ ” from issuance of the order. Bennett, supra, at 178 (quoting Marine Terminal, supra, at 71). For one, according to the Government’s current litigating position, the order exposes the Sacketts to dou­ ble penalties in a future enforcement proceeding.2 It also severely limits the Sacketts’ ability to obtain a permit for their fill from the Army Corps of Engineers, see 33 U.S. C. §1344. The Corps’ regulations provide that, once the EPA has issued a compliance order with respect to certain property, the Corps will not process a permit application for that property unless doing so “is clearly appropriate.” 33 CFR §326.3(e)(1)(iv) (2011).3 The issuance of the compliance order also marks the “ ‘consummation’ ” of the agency’s decisionmaking process. —————— 2 We do not decide today that the Government’s position is correct, but assume the consequences of the order to be what the Government asserts. 3 The regulation provides this consequence for “enforcement litigation that has been initiated by other Federal . . . regulatory agencies.” 33 CFR §326.3(e)(1)(iv) (2011). The Government acknowledges, however, that EPA’s issuance of a compliance order is considered by the Corps to fall within the provision. Brief for Respondents 31. Here again, we take the Government at its word without affirming that it represents a proper interpretation of the regulation. 6 SACKETT v. EPA Opinion of the Court Bennett, supra, at 178 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 113 (1948)). As the Sacketts learned when they unsuccessfully sought a hearing, the “Findings and Conclusions” that the compliance order contained were not subject to further agency review. The Government resists this conclusion, pointing to a portion of the order that invited the Sacketts to “engage in informal discussion of the terms and re­ quirements” of the order with the EPA and to inform the agency of “any allegations [t]herein which [they] believe[d] to be inaccurate.” App. 22–23, ¶2.11. But that confers no entitlement to further agency review. The mere possibil­ ity that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal. The APA’s judicial review provision also requires that the person seeking APA review of final agency action have “no other adequate remedy in a court,” 5 U.S. C. §704. In Clean Water Act enforcement cases, judicial review ordi­ narily comes by way of a civil action brought by the EPA under 33 U.S. C. §1319. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability. The other possi­ ble route to judicial review—applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—will not serve either. The remedy for denial of action that might be sought from one agency does not ordinarily provide an “adequate remedy” for ac- tion already taken by another agency. The Government, to its credit, does not seriously contend that other availa­ ble remedies alone foreclose review under §704. Instead, the Government relies on §701(a)(1) of the APA, which excludes APA review “to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says, is such a statute. Cite as: 566 U. S. ____ (2012) 7 Opinion of the Court III Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in de­ termining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to] its express language.” Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984). The APA, we have said, creates a “presumption favoring judicial review of administrative action,” but as with most presumptions, this one “may be overcome by inferences of intent drawn from the statutory scheme as a whole.” Id., at 349. The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review. The Government first points to 33 U.S. C. §1319(a)(3), which provides that, when the EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall issue an order requiring such person to comply with [the Act], or . . . shall bring a civil action [to enforce the Act].” The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the Act to allow judicial review of the latter. But that argument rests on the question-begging premise that the relevant difference between a compliance order and an enforcement proceeding is that only the latter is subject to judicial review. There are eminently sound reasons other than insulation from judicial review why compliance orders are useful. The Government itself suggests that they “provid[e] a means of notifying recipients of potential vio­ lations and quickly resolving the issues through volun- tary compliance.” Brief for Respondents 39. It is entirely consistent with this function to allow judicial review when the recipient does not choose “voluntary compliance.” The Act does not guarantee the EPA that issuing a compliance order will always be the most effective choice. The Government also notes that compliance orders are 8 SACKETT v. EPA Opinion of the Court not self-executing, but must be enforced by the agency in a plenary judicial action. It suggests that Congress there­ fore viewed a compliance order “as a step in the delibera­ tive process[,] . . . rather than as a coercive sanction that itself must be subject to judicial review.” Id., at 38. But the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanc­ tion. And it is hard for the Government to defend its claim that the issuance of the compliance order was just “a step in the deliberative process” when the agency rejected the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation (if the EPA brings an enforcement action). As the text (and indeed the very name) of the compliance order makes clear, the EPA’s “deliberation” over whether the Sacketts are in violation of the Act is at an end; the agency may still have to deliberate over whether it is confident enough about this conclusion to initiate litiga­ tion, but that is a separate subject. The Government further urges us to consider that Con­ gress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administra­ tive penalties after a hearing, see §1319(g)(8), but did not expressly provide for review of compliance orders. But if the express provision of judicial review in one section of a long and complicated statute were alone enough to over- come the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all. The cases on which the Government relies simply are not analogous. In Block v. Community Nutrition Institute, supra, we held that the Agricultural Marketing Agree­ ment Act of 1937, which expressly allowed milk handlers to obtain judicial review of milk market orders, precluded review of milk market orders in suits brought by milk Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court consumers. 467 U.S., at 345–348. Where a statute pro­ vides that particular agency action is reviewable at the instance of one party, who must first exhaust administra­ tive remedies, the inference that it is not reviewable at the instance of other parties, who are not subject to the admin­ istrative process, is strong. In United States v. Erika, Inc., 456 U.S. 201 (1982), we held that the Medicare statute, which expressly provided for judicial review of awards under Part A, precluded review of awards under Part B. Id., at 206–208. The strong parallel between the award provisions in Part A and Part B of the Medicare statute does not exist between the issuance of a compliance order and the assessment of administrative penalties under the Clean Water Act. And in United States v. Fausto, 484 U.S. 439 (1988), we held that the Civil Service Reform Act, which expressly excluded certain “nonpreference” employees from the statute’s review scheme, precluded review at the instance of those employees in a separate Claims Court action. Id., at 448–449. Here, there is no suggestion that Congress has sought to exclude compli­ ance-order recipients from the Act’s review scheme; quite to the contrary, the Government’s case is premised on the notion that the Act’s primary review mechanisms are open to the Sacketts. Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficien­ cy of then-existing remedies for water pollution. Compli­ ance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review. The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of 10 SACKETT v. EPA Opinion of the Court regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity. * * * We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judg­ ment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. ____ (2012) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 10–1062 _________________ CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI- RONMENTAL PROTECTION AGENCY, ET AL.

We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U.S. C. et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an admin­ istrative compliance order under of the Clean Water Act, 33 U.S. C. The order asserts that the Sack­ etts’ property is subject to the Act, and that they have violated its provisions by placing fill material on the prop­ erty; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan. I The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” without a permit, into the “navigable waters,” the Act defines as “the waters of the United States,” If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. When the EPA prevails in a civil action, the Act provides for “a civil penalty not to exceed [$37,500] per 2 SACKETT v. EPA Opinion of the Court day for each violation.”1 And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to $37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order. The particulars of this case flow from a dispute about the scope of “the navigable waters” subject to this en­ forcement regime. Today we consider only whether the dispute may be brought to court by challenging the com­ pliance order—we do not resolve the dispute on the merits. The reader will be curious, however, to know what all the fuss is about. In United we upheld a regulation that construed “the navigable waters” to include “freshwa­ ter wetlands,” themselves not actually naviga­ ble, that were adjacent to navigable-in-fact waters. Later, in Solid Waste Agency of Northern Cook we held that an abandoned sand and gravel pit, which “seasonally ponded” but which was not adjacent to open water, was not part of the navigable waters. Then most recently, in we consid­ ered whether a wetland not adjacent to navigable-in-fact waters fell within the scope of the Act. Our answer was no, but no one rationale commanded a majority of the Court. In his separate opinion, THE CHIEF JUSTICE ex­ pressed the concern that interested parties would lack —————— 1 The original statute set a penalty cap of $25,000 per violation per day. The Federal Civil Penalties Inflation Adjustment Act of 1990, 104 Stat. 890, note following 28 U.S. C. as amended by the Debt Collection Improvement Act of 1996, –373, note following 28 U.S. C. p. 1315 (Amendment), authorizes the EPA to adjust that maximum penalty for inflation. On the basis of that authority, the agency has raised the cap to $37,500. See 74 Fed. Reg. 626, 627 (2009). Cite as: 566 U. S. (2012) 3 Opinion of the Court guidance “on precisely how to read Congress’ limits on the reach of the Clean Water Act” and would be left “to feel their way on a case-by-case basis.” (concurring opinion). The Sacketts are interested parties feeling their way. They own a 2⁄3-acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but is separated from the lake by several lots containing perma­ nent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and rock. Some months later, they received from the EPA a compli­ ance order. The order contained a number of “Findings and Conclusions,” including the following: “1.4 [The Sacketts’ property] contains wetlands with­ in the meaning of (8)(b); the wet­ lands meet the criteria for jurisdictional wetlands in the 1987 ‘Federal Manual for Identifying and Deline­ ating Jurisdictional Wetlands.’ “1.5 The Site’s wetlands are adjacent to Priest Lake within the meaning of (8)(c). Priest Lake is a ‘navigable water’ within the meaning of sec­ tion 502(7) of the Act, 33 U.S. C. and ‘wa­ ters of the United States’ within the meaning of 40 C. F. R. “1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or persons acting on their behalf discharged fill material into wetlands at the Site. [They] filled approximately one half acre. “1.9 By causing such fill material to enter waters of the United States, [the Sacketts] have engaged, and are continuing to engage, in the ‘discharge of pollu­ tants’ from a point source within the meaning of sec­ tions 301 and 502(12) of the Act, 33 U.S. C. and 1362(12). 4 SACKETT v. EPA Opinion of the Court “1.11 [The Sacketts’] discharge of pollutants into wa­ ters of the United States at the Site without [a] per­ mit constitutes a violation of section 301 of the Act, 33 U.S. C. App. 19–20. On the basis of these findings and conclusions, the order directs the Sacketts, among other things, “immediately [to] undertake activities to restore the Site in accordance with [an EPA-created] Restoration Work Plan” and to “pro- vide and/or obtain access to the Site [and] access to all records and documentation related to the conditions at the Site to EPA employees and/or their designated representatives.” at 21–22, ¶¶2.1, 2.7. The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but that request was denied. They then brought this action in the United States District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA’s issuance of the compliance order was “arbitrary [and] capricious” under the Administrative Procedure Act (APA), 5 U.S. C. and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject­ matter jurisdiction, and the United States Court of Ap­ peals for the Ninth Circuit affirmed, (2010). It concluded that the Act “preclude[s] pre­ enforcement judicial review of compliance orders,” at 1144, and that such preclusion does not violate the Fifth Amendment’s due process guarantee, We granted certiorari. 564 U. S. (2011). II The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S. C. We consider first whether the compliance Cite as: 566 U. S. (2012) 5 Opinion of the Court order is final agency action. There is no doubt it is agency action, which the APA defines as including even a “failure to act.” 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA “ ‘determined’ ” “ ‘rights or ob­ ligations.’ ” ). By reason of the order, the Sacketts have the legal obliga­ tion to “restore” their property according to an agency­ approved Restoration Work Plan, and must give the EPA access to their property and to “records and documentation related to the conditions at the Site.” App. 22, ¶2.7. Also, “ ‘legal consequences flow’ ” from issuance of the order. at (quoting Marine at ). For one, according to the Government’s current litigating position, the order exposes the Sacketts to dou­ ble penalties in a future enforcement proceeding.2 It also severely limits the Sacketts’ ability to obtain a permit for their fill from the Army Corps of Engineers, see 33 U.S. C. The Corps’ regulations provide that, once the EPA has issued a compliance order with respect to certain property, the Corps will not process a permit application for that property unless doing so “is clearly appropriate.” (e)(1)(iv) (2011).3 The issuance of the compliance order also marks the “ ‘consummation’ ” of the agency’s decisionmaking process. —————— 2 We do not decide today that the Government’s position is correct, but assume the consequences of the order to be what the Government asserts. 3 The regulation provides this consequence for “enforcement litigation that has been initiated by other Federal regulatory agencies.” 33 CFR (2011). The Government acknowledges, however, that EPA’s issuance of a compliance order is considered by the Corps to fall within the provision. Brief for Respondents 31. Here again, we take the Government at its word without affirming that it represents a proper interpretation of the regulation. 6 SACKETT v. EPA Opinion of the Court at (quoting Chicago & Southern Air Lines, (1948)). As the Sacketts learned when they unsuccessfully sought a hearing, the “Findings and Conclusions” that the compliance order contained were not subject to further agency review. The Government resists this conclusion, pointing to a portion of the order that invited the Sacketts to “engage in informal discussion of the terms and re­ quirements” of the order with the EPA and to inform the agency of “any allegations [t]herein which [they] believe[d] to be inaccurate.” App. 22–23, ¶2.11. But that confers no entitlement to further agency review. The mere possibil­ ity that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal. The APA’s judicial review provision also requires that the person seeking APA review of final agency action have “no other adequate remedy in a court,” 5 U.S. C. In Clean Water Act enforcement cases, judicial review ordi­ narily comes by way of a civil action brought by the EPA under 33 U.S. C. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue, by the Government’s telling, an additional $75,000 in potential liability. The other possi­ ble route to judicial review—applying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—will not serve either. The remedy for denial of action that might be sought from one agency does not ordinarily provide an “adequate remedy” for ac- tion already taken by another agency. The Government, to its credit, does not seriously contend that other availa­ ble remedies alone foreclose review under Instead, the Government relies on of the APA, which excludes APA review “to the extent that [other] statutes preclude judicial review.” The Clean Water Act, it says, is such a statute. Cite as: 566 U. S. (2012) 7 Opinion of the Court III Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise. But in de­ termining “[w]hether and to what extent a particular statute precludes judicial review,” we do not look “only [to] its express language.” The APA, we have said, creates a “presumption favoring judicial review of administrative action,” but as with most presumptions, this one “may be overcome by inferences of intent drawn from the statutory scheme as a whole.” The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review. The Government first points to 33 U.S. C. which provides that, when the EPA “finds that any person is in violation” of certain portions of the Act, the agency “shall issue an order requiring such person to comply with [the Act], or shall bring a civil action [to enforce the Act].” The Government argues that, because Congress gave the EPA the choice between a judicial proceeding and an administrative action, it would undermine the Act to allow judicial review of the latter. But that argument rests on the question-begging premise that the relevant difference between a compliance order and an enforcement proceeding is that only the latter is subject to judicial review. There are eminently sound reasons other than insulation from judicial review why compliance orders are useful. The Government itself suggests that they “provid[e] a means of notifying recipients of potential vio­ lations and quickly resolving the issues through volun- tary compliance.” Brief for Respondents 39. It is entirely consistent with this function to allow judicial review when the recipient does not choose “voluntary compliance.” The Act does not guarantee the EPA that issuing a compliance order will always be the most effective choice. The Government also notes that compliance orders are 8 SACKETT v. EPA Opinion of the Court not self-executing, but must be enforced by the agency in a plenary judicial action. It suggests that Congress there­ fore viewed a compliance order “as a step in the delibera­ tive process[,] rather than as a coercive sanction that itself must be subject to judicial review.” But the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanc­ tion. And it is hard for the Government to defend its claim that the issuance of the compliance order was just “a step in the deliberative process” when the agency rejected the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation (if the EPA brings an enforcement action). As the text (and indeed the very name) of the compliance order makes clear, the EPA’s “deliberation” over whether the Sacketts are in violation of the Act is at an end; the agency may still have to deliberate over whether it is confident enough about this conclusion to initiate litiga­ tion, but that is a separate subject. The Government further urges us to consider that Con­ gress expressly provided for prompt judicial review, on the administrative record, when the EPA assesses administra­ tive penalties after a hearing, see but did not expressly provide for review of compliance orders. But if the express provision of judicial review in one section of a long and complicated statute were alone enough to over- come the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all. The cases on which the Government relies simply are not analogous. In Block v. Community Nutrition Institute, we held that the Agricultural Marketing Agree­ ment Act of 1937, which expressly allowed milk handlers to obtain judicial review of milk market orders, precluded review of milk market orders in suits brought by milk Cite as: 566 U. S. (2012) 9 Opinion of the Court 467 U.S., at –348. Where a statute pro­ vides that particular agency action is reviewable at the instance of one party, who must first exhaust administra­ tive remedies, the inference that it is not reviewable at the instance of other parties, who are not subject to the admin­ istrative process, is strong. In United we held that the Medicare statute, which expressly provided for judicial review of awards under Part A, precluded review of awards under Part B. at 206–208. The strong parallel between the award provisions in Part A and Part B of the Medicare statute does not exist between the issuance of a compliance order and the assessment of administrative penalties under the Clean Water Act. And in United States v. Fausto, 484 U.S. 439 (1988), we held that the Civil Service Reform Act, which expressly excluded certain “nonpreference” employees from the statute’s review scheme, precluded review at the instance of those employees in a separate Claims Court action. at 448–449. Here, there is no suggestion that Congress has sought to exclude compli­ ance-order recipients from the Act’s review scheme; quite to the contrary, the Government’s case is premised on the notion that the Act’s primary review mechanisms are open to the Sacketts. Finally, the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficien­ cy of then-existing remedies for water pollution. Compli­ ance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true—but it will be true for all agency actions subjected to judicial review. The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of 10 SACKETT v. EPA Opinion of the Court regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity. * * * We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judg­ ment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. (2012) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 10–1062 CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI- RONMENTAL PROTECTION AGENCY, ET AL.